New Law on Police Protection in Peru: more vulnerability for indigenous human rights defenders?

The Police Protection Act (Law No. 31012), proposed by the dissolved Congress, was passed in Peru by the new Congress on 27 March, without approval by the Executive, 11 days after declaring a State of Emergency in the country due to the spread of COVID-19.

This law is questionable because of its unconstitutionality, and since it may open the door to possible impunity according to the Institute of Legal Defense (IDL). Furthermore, the Ombudsman's Office, the National Human Rights Coordinator (CNDDHH) of Peru and the Inter-American Commission on Human Rights (IACHR) have already expressed their concerns publicly.

The Act forbids ordering a warrant of arrest or pre-trial detention for Peruvian National Police (PNP) personnel who may injure or kill in a regulatory intervention. Its complementary provision repeals the principle of proportionality where force is used during police responses, which undermines a constitutional, human rights-based framework for regulating police conduct and may allow for excesses and arbitrariness.

According to the Ombudsman's Office, as of January 2020, there were 129 socio-environmental conflicts in Peru. So how will the National Police respond to unforeseen events, even more so in a post-COVID-19 context, where indigenous peoples’ territories could be rendered even more vulnerable to actions to reactivate the country's economy?

Of particular relevance here are the findings included in the End of Mission Statement of the United Nations Special Rapporteur on the situation of human rights defenders, Michel Forst. Concluding a formal visit to Peru at the beginning of this year, UNSR Forst identified that, despite the progress made in this area, human rights defenders, especially indigenous peoples and local communities, are still unable to carry out their work in a safe environment.

According to the Rapporteur and a report by the Ombudsman's Office, 960 people have been criminalised for defending and promoting human rights since 2002, of whom 538 were criminalised during social protests. Between 2011 and 2016, 87 human rights defenders lost their lives in Peru, 67% because of law enforcement, according to a CNDDHH report.

We must reflect on the possible consequences of this recently enacted Police Protection Act within the context of permanent social conflict, mainly in rural areas where there is no real presence of the State. Here restrictions on indigenous peoples’ right to protest are interconnected with threats to their territories and livelihoods by extractive industries, the expansion of industrial agriculture or other drivers of dispossession; the lack of secure tenure over their territories and the State’s failure to safeguard them; and a regulatory framework which enables the privatisation of the police force through agreements which only add to increased social tensions, due to the excessive use of force and repression.

In recent years, comprehensive police protection for the public interest has lost ground to the interests of private companies operating in Peru. For example, 145 agreements of “Extraordinary Police Service”, between the Peruvian Police and extractive companies (mining and hydrocarbon sectors), were established between 1995 and 2018, according to a report by the Working Group on Indigenous Peoples of the CNDDHH. One example of this is the agreement between the hydrocarbon company PETROPERÚ S.A. and the police (2018) for operations in Amazonas and Loreto regions, which affects the ancestral lands of the Autonomous Territorial Government of the Wampis Nation (GTANW).

It is crucial that Peruvian authorities repeal said law to avoid risking the lives of human rights defenders, especially indigenous peoples who are at the forefront of threats, harassment and criminalisation when they protest due to conflicts arising in their territories.

Indigenous territories are more vulnerable than ever during the current community contagion phase of COVID-19, as proper health infrastructure and equipment may not reach those areas, nor provide timely and dignified protection for them. There are companies continuing to work within indigenous territories during the State of Emergency, including the oil palm company Ocho Sur P. in the Shipibo ancestral territory of Santa Clara de Uchunya. According to IDL, Ocho Sur is continuing to operate without an approved Environmental Impact Assessment.

When the Health State of Emergency is over, most companies will want to recover the losses they have sustained during these weeks and months by any means available, regardless of the rights of indigenous peoples. This is where the State should focus its Protection measures.