ASSESMENT OF THE PROTECTION MECHANISMS FOR INDIGENOUS ENVIRONMENTAL DEFENDERS IN MINING CONTEXTS, IN PERU1

Raquel Zonia Yrigoyen Fajardo^1,2*

• ¹Pontificia Universidad Catolica del Peru, Lima District, Peru
• ²Instituto Internacional de Derecho y Sociedad IIDS, Lima, Peru

is because national mining regulations do not provide for prior consultation regarding mining concessions, leading to significant legal disputes. 11 Faced with the intrusion of miners, Indigenous peoples resist, mobilize, and defend themselves collectively, using their jurisdiction to prohibit entry and/or expel miners from their territories. 12 In the case of "illegal mining", the confrontation between Indigenous peoples and miners is direct, and the latter often respond with threats, kidnappings, and the murder of Indigenous people. 13 In the case of "formal mining", due to its appearance of legality, corporations obtain police 14 and military support for repression, leaving Indigenous people dead, wounded, stigmatized, and criminalized, 15 as in the Conga case, 16 where their leaders face more than 500 criminal proceedings. Peru is subject to an international legal framework for the protection of human rights defenders developed by the universal system and the Inter-American Human Rights System since 1998. 17 It has also established institutional mechanisms and policies on human rights defenders, starting with the inclusion of the issue in the third National Human Rights Plan 2018-2021. 18 Additionally, in 2018, Peru signed the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean, but Congress rejected its ratification.In 2021, the Ministry of Justice and Human Rights (MINJUSDH) created the "Intersectoral Mechanism for the Protection of Human Rights Defenders" through Supreme Decree 004-2021-JUS, modified by Supreme Decree 002-2022-JUS (hereinafter, "the Mechanism"). The Mechanism defines who human rights defenders are, identifies risk situations and their causes. It also establishes the procedures and possible prevention and protection measures to be adopted. 19 The Mechanism brings together eleven state entities, 20 which have developed specific protocols, 21 and includes a portal for registering risk situations (hereinafter, "the Portal"). 22 Do protection mechanisms reflect actual challenges faced by defenders? Regarding "risk factors", the Portal offers registration options linked to "illegal economies", such as illegal mining, illegal logging, drug trafficking, etc., but offers no option to register risks linked to "formal mining", for which the Mechanism is not relevant.Regarding "types of risk," the Portal allows the registration of "arbitrary detentions," but not cases involving "criminalization", that is, when human rights defenders face criminal proceedings, which represents one of the most widespread forms of persecution against them. The Mechanism thus indirectly ignores the recommendations of the IACHR to halt the criminalization of human rights defenders. 23 Regarding the measures to be adopted by the Mechanism, most are individual in nature and do not appear relevant to collective cases. For example, they do not consider strengthening Indigenous autonomy to determine their own development path and decide who may or may not enter their territory. 24 Nor do they foresee measures to strengthen Indigenous jurisdictions against the intrusion by third parties, whether through Indigenous justice systems, peasant patrols, or Indigenous guards. 25 The Mechanism, 22 MINJUSDH (n.d.). Portal for human rights defenders at risk. 23 "The IACHR has understood criminalization as the misuse of criminal law through the manipulation of the State's punitive power by state or non-state actors with the aim of hindering its defense work and thus preventing the legitimate exercise of its right to defend human rights." (CIDH, 2025, para. 150). 24 The Constitutional Court (2012), in the case of the Native Community of Tres Islas (Exp. 1126-2011-HC/TC) established the obligation to respect communal autonomy, based on its right to decide its development priorities in its territory and not allow the unauthorized intrusion of third parties, based on articles 7 and 18 of ILO Convention 169. See an analysis in Yrigoyen, 2013. 25 In the case of the "Tres Islas" Native Community, the Supreme Court determined that the Community's decision to prevent the entry of third parties was not the crime of "obstruction of communications" rather the "exercise of its jurisdictional functions" recognized in Article 149 of the Constitution, and therefore acquitted the community authorities. Supreme Court of Peru (2010) Case No. 952-2010-41-incident: Exception of inadmissibility of the action. Case of the Tres Islas Native Community. See case analysis in: Yrigoyen, 2025, p. 305. also, does not offer measures to address demands related to the annulment of concessions granted without consultation, which could provide a fundamental solution. 26 According to MINJUSDH (n.d.), between June 2019 and July 2025, 517 "risk situations" were identified and recorded involving 742 human rights defenders and 61 family members, most of them in the Amazon region. Eighty-five percent of the cases relate to the "defense of the environment and the rights of Indigenous peoples". Seventy percent are related to risks stemming from "illegal activities," such as illegal logging (23%), drug trafficking (16%), illegal mining, etc. 27 The official Portal notably reports 91 cases of illegal mining in Indigenous communities, representing 18% of the registered cases. 28 While there are no official statistics about the effectiveness of protection measures, indigenous organisations question the Mechanism's limited effectiveness, 29 citing "its limited coverage, lack of budget, and untimely response to imminent threats", including cases of people who were killed despite having protection measures in place. 30 Current protection mechanisms are neither relevant nor effective in cases of Indigenous leaders being criminalized for defending the environment against "formal mining" megaprojects, nor have they proven effective in protecting Indigenous defenders against "illegal mining". Protection mechanisms need to address both "formal" and "illegal mining", which will need far more attention to the risks generated by criminalization.Protection mechanisms must be rethought with the effective participation of Indigenous peoples.Among the measures to be taken, it is necessary to strengthen and support Indigenous jurisdictions to prevent the intrusion of unauthorized miners or, if necessary, expel them from their territories. Furthermore, the State, at the request of Indigenous peoples and in coordination with them, must implement effective interdiction measures to expel miners 26 The Tres Islas Community, which was being harassed by the intrusion of miners into its territory, sued for the annulment of all mining concessions, the allocation of agricultural land, and water rights granted to third parties within its communal territory without prior consultation. The Judiciary upheld its claim, declaring all administrative acts carried out without consultation null and void and ordering full redress. See: Yrigoyen, 2019. 27 Regarding the regions with the most risk situations entered into the Registry, they are: "Ucayali (19%), Lima (15%), Loreto (11%), San Martín (11%), Madre de Dios (9%), Piura (7%), Huánuco (5%), Amazonas (5%) and Junín (4%)". MINJUSDH (n.d.). "Registry System on Risk Situations of Human Rights Defenders". 28 Of the mining-related cases, a third are located in Madre de Dios (31), followed by Loreto (19), Amazonas (17), Huánuco (12), and Cusco (4), among others. MINJUSDH (as of December 10, 2024). Consult statistical information on risk situations against human rights defenders. Filter applied: Environment, Indigenous Peoples, Illegal Mining (no other mining category). 29 As one indigenous organization points out that, "of the 180 cases of risk in Ucayali, the Ministry of the Interior only provided 38 resolutions of personal guarantees for human rights defenders between 2020 and 2024," that is, it only attended to one out of every five people who actually required the guarantees. García, F. (2025, May 12). 30 Indigenous organizations also report the deaths of 35 indigenous defenders between 2013 and 2024, who were threatened in cases of illegal logging, land trafficking and drug trafficking, and question the effectiveness of the Intersectoral Mechanism (ODDA, 2025, 21 p.). from Indigenous territories, since any entry without Indigenous consent is illegal per se, without the need to wait for court rulings.Among the substantive measures, it is necessary to promote policies that guarantee the State does not grant mining concessions or establish mining registries (REINFO) without adequate environmental safeguards and without the prior consultation and consent of Indigenous Peoples. And, if the State has already granted concessions or registrations without prior consultation, measures should be included to promote the declaration of nullity of such concessions or registrations.