Criminalization of Indigenous land defender Bernardo Caal Xol raised at United Nations in Geneva

On January 14, the Peace Brigades International-Guatemala Project shared a post that states, “María Josefina Caal Xol recently visited the offices of the United Nations Organization -UNU- in Geneva, Switzerland, to announce before a commission the criminalization that the State of Guatemala has exercised against her brother Bernardo Caal Xol, sentenced to 7 years in prison, as revenge against him for denouncing the dispossession of the Cahabón River and Ox-eek River ‘to the Q’eqchi People’.”

In Report on the Misuse of Criminal Justice Systems to Retaliate Against Environmental Defenders, Peace Brigades International explains:

Bernardo Caal Xol is a leader of the Peaceful Resistance of Cahabón, a collective of 38 Maya Q’eqchi communities in the municipality of Cahabón. The Peaceful Resistance of Cahabón formed in 2015 to oppose the construction of dams on the Oxec River in Cahabón, Alta Verapaz, Guatemala. The hydroelectric project, although constructed on Q’eqchi’ Maya territory, was licensed in 2012 without a prior consultation, as required by Convention 169 of the International Labor Organization. The company operating the dams, Oxec S.A, a subsidiary of Energy Resources Capital Corp (ERCC), began construction of the Oxec I dam in November 2015.

The following month, in December 2015, Bernardo Caal Xol, a community leader and teacher in Cahabón, filed on behalf of the indigenous Q’eqch’i a complaint with the Guatemalan Supreme Court against the Ministry of Energy and Mining, asking the court to suspend the operations of the Oxec hydroelectric project, since the license was granted without prior consultation with the indigenous communities affected. Although Oxec, S.A. and the Ministry of Energy and Mines argued that prior consent was achieved through an agreement signed in 2012 between the company and a few inhabitants of eleven communities, the Supreme Court agreed with Caal, ruling in April 2016 that the construction be provisionally suspended. The company appealed the ruling to the Constitutional Court.

In January 2017, the Supreme Court made a final ruling, in favor of Bernardo Caal Xol, and the company was ordered to halt construction until the question of community consultation was addressed. In February 2017, the Constitutional Court upheld the suspension of the Oxec hydroelectric plant construction. In May 2017, the Constitutional Court lifted the suspension and granted Oxec permission to resume work, on the condition that an adequate consultation would be carried out within twelve months.

On March 27, 2017, an arrest warrant on charges of fraud was issued for Caal by Judge Ricardo Isaias Caal. The charges related to a period of time between January 6, 2012 and August 31, 2013 when Caal was reportedly receiving a salary yet not teaching. Caal maintains his innocence in the matter. An administrative procedure by the Ministry of Education, in any case, should have preceded any criminal complaint. Caal and his attorneys argue that the charges were lodged against him in reprisal for his work to defend land, territory, and the environment. In addition to the complaint he filed with the Supreme Court, Caal filed lawsuits against Oxec S.A., one alleging illegal cutting of trees and another alleging illegal use of national property in the area where the construction would be taking place. The news of the arrest warrant found its way immediately to the press, and articles defaming Caal appeared. In response to the arrest warrant, Bernardo Caal voluntarily appeared before the judge on July 9, 2017, paid bail, and was released, with the stipulation that he check in every two weeks, a requirement he complied with.

Flyers began appearing around Cahabón, accusing Bernardo Caal Xol of being a dangerous criminal and an enemy of the state, and a second warrant was issued for Caal’s arrest on December 8, 2017. On January 30, 2018, Bernardo Caal Xol voluntarily presented himself. During the January 30, 2018 hearing, no court official referred to any other pending charges against him. He was surprised, therefore, when National Civil Police officers arrested him as he left the courthouse and charged him with aggravated robbery, threats, aggravated illegal detention, and incitement to commit a crime.

The charges, which required pretrial detention, were in connection with an October 15, 2015 demonstration. Employees of Netzone S.A., a subcontractor working on construction of the second hydroelectric plant, known as Oxec II, say they were detained and robbed of tools and electric and communications cables by a group of community members led by Caal. Caal and numerous witnesses maintain that he arrived late and was not at the demonstration when the supposed events occurred. Caal and his attorneys also maintain that video and 420 photographs taken during the march show that the items in and on the truck remained intact. In a February 5, 2018 hearing, Caal’s defense team pointed out that the Public Ministry had not carried out a thorough investigation of the incident. The judge dismissed two of the charges—threats and incitement to commit a crime—and set a two-month deadline for the Public Ministry to finish its investigation and present its final conclusions. On November 9, 2018, Bernardo Caal Xol was convicted by the Court of the First Instance in Alta Verapaz and sentenced to seven years and four months in prison for aggravated detention and theft.

No evidence exists of Bernardo Caal’s involvement in any crime. The supposed crime happened in 2015. It was not until 2017, two years later, that he was linked to the supposed crime and his arrest was sought.

Numerous witnesses who were at the march say that Caal arrived late. The supposed incident occurred at 8:30 AM. Caal arrived at the march hours later, according to witnesses. The 13 videos and 420 photographs do not place Caal at the march earlier in the day, and show items on the truck intact, according to Caal’s attorneys.

United Nations experts have found his conviction to be politically motivated: “The criminalisation of Mr. Caal Xol was preceded by virulent defamation campaigns in media, depicting him as a violent criminal acting against the interest of the nation,” said the Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, who visited Guatemala in May 2018 and met Caal in prison in Cobán. “The conviction of Mr. Caal Xol to over seven years in prison on charges of illegal detention and aggravated robbery of a drill, a tool box and some fibre optic cable, appears grossly inflated and was primarily based on testimonies of affiliates with the Oxec company. The conviction of the Q’eqchí’ leader is an apparent attempt to silence and discredit the legitimate exercise of the rights of the indigenous community,” the experts stated. “This is not an isolated case; there are numerous indigenous community members who are being criminalised in Guatemala for defending their traditional lands and resources against large-scale development projects which cause environmental damage.”

Bernardo Caal Xol has expressed serious concern for his safety in prison. He has stated in media interviews that there are often rumors of threats against him in the prison. He wrote an urgent open letter, dated August 18, 2019, asking for a meeting with the Human Rights Ombudsman to report to him the penal and political persecution he was suffering at the hands of the Guatemalan government.

Caal has a wife and two daughters ages 10 and 12.wife His separation from his family is painful for the children, his wife, and himself. His wife is also a teacher. They live in Chimaltenango, a journey of 262 kilometers from the prison in Cobán where Caal is. To visit him they must first travel to Guatemala City (correct? The article says “the capital”) in a taxi. Then they have to take a bus to get to Cobán. The journey takes eight hours, and they must sleep in a hotel. They arrive on a Saturday night to visit him on Sunday and then have to make the journey back. The journey wears on them physically, psychologically, and economically.

In addition, the Peaceful Resistance of Cahabón has suffered the loss of a leader and the demoralizing effect of seeing a leader jailed in reprisal for his efforts to use the legal system to secure the rights afforded to his community by law. The hydroelectric project continues, with the construction of new dams planned.

PBI-Guatemala has accompanied the Peaceful Resistance of Cahabón since July 2017.