Latin America is one of the world’s most dangerous regions for human rights activists, and the criminalization of human rights defenders and civil society actors — loosely defined as the misuse of criminal law to impede their work — is on the rise. President Joe Biden’s administration recently launched an initiative to address this growing threat in Central America. But as the reality on the ground in Honduras and Guatemala shows, the United States risks fueling the criminalization crisis through its other policies, including its reliance on private-sector investment to foster economic development and slow migration. The U.S. government can and should do more to reduce the criminalization risk by integrating human rights protections into all of its policies and programs in Central America, especially those involving problematic industries.

The new Biden program came in the context of the Summit of the Americas in June, when the administration announced that the U.S. Agency for International Development (USAID) would launch the “Voices” (or “Voces” in Spanish) Initiative to “protect, defend, and promote civic space in Central America.” Among other priorities, USAID plans to “promote freedom of expression” and “work to counter [the] increasing trend of trying to criminalize civil society actors, providing them with enhanced physical, digital, and legal protection.”

The recognition of criminalization of human rights advocacy as a significant issue is encouraging, but the addition of an isolated program will not be enough to curb this phenomenon, nor to make up for years of U.S. foreign policy that neglected human rights defenders and even aided in their persecution. If U.S. policy is to be more helpful than harmful in its overall impact, the administration must adjust its approach to reflect the role of the private sector in criminalizing human rights advocacy.

When Corporations Are the Criminalizers

Biden and Vice President Kamala Harris have promoted private-sector investment in Central America on the theory that it will improve standards of living and stem the flow of migrants to the United States. Alongside the rollout of the “Voices” initiative to support human rights advocates, Biden unveiled the “Americas Partnership for Economic Prosperity,” which will involve “reinvigorating regional economic institutions and mobilizing investment.” And Harris announced that her U.S. Strategy to Address the Root Causes of Migration had garnered more than $3.2 billion in investment commitments from companies like Gap, Visa, Microsoft, Cargill, and others. According to the White House, “these investments are creating an ecosystem of opportunity and helping to provide hope for people in the region to build safe and prosperous lives at home.”

The problem is that promoting investment can empower some of the most formidable actors that criminalize human rights advocacy: powerful corporations, both local and multinational. Experts have noted a worrying rise in the use of legal tactics by businesses to silence their opponents. These tools include strategic lawsuits against public participation (SLAPPs), which are lawsuits initiated by private entities against those who speak out against their economic activities. In a recent analysis of 355 SLAPP cases filed between 2015 and 2021, the Business and Human Rights Resource Centre identified Latin America as the region with the most SLAPPs, accounting for 39 percent of the total. The Centre noted that these suits are “likely to be the tip of the iceberg, recognizing the challenges of identifying SLAPPs and directly linking them to the companies involved.”

An infamous example from Honduras is the case of eight environmental activists campaigning to protect the Guapinol and San Pedro rivers, who stood trial last winter for alleged crimes connected to their opposition to a mining project. (The organization where I serve as a fellow, Robert F. Kennedy Human Rights — RFKHR — filed an amicus brief in the case.)

The charges stemmed from the events of Sept. 7, 2018, when private security guards hired by the mining company Inversiones Los Pinares (ILP) confronted community members at a protest camp they had set up to block access to the concession site. Although one of the protesters was shot, the authorities never investigated this fact; instead, they brought criminal charges against dozens of community members. Eight men were ultimately tried after more than two years in arbitrary detention. Like many countries in Latin America and around the world, Honduras affords crime victims the right to private prosecution; as a result, the defenders faced not only the Public Prosecutor’s Office, but also ILP’s own private prosecutors.

Civil society observers noted numerous injustices and irregularities throughout the defenders’ ordeal. For instance, there was barely any evidence connecting the defenders to the alleged crimes; the prosecution offered only the inconsistent and contradictory statements of its witnesses, all of whom were employees of the company or otherwise economically interested in its success. At one point, the court permitted the prosecution to add a new charge without meeting the requirements set out in the Criminal Procedural Code. Lawyers for the defense repeatedly denounced in public statements the apparent partiality of the presiding judges and accused the Public Prosecutor’s Office of serving private business interests.

In a Feb. 9 ruling that prompted international condemnation, six of the defenders were found guilty of burning and damaging containers belonging to ILP, as well as detaining one of its security guards and setting fire to his truck. But the next day, the Supreme Court suddenly resolved two complaints filed by the defenders’ lawyers more than 10 months before, annulling the entire trial and ordering the defenders’ release. Thanks to that intervention, all eight defenders were eventually freed.

While criminalization occurs around the world, Honduras stands out for its high number of lawsuits brought by corporate entities. During the period assessed by the Business and Human Rights Resource Centre, 46 SLAPPs were identified in Honduras, the highest number of any country in Latin America and the second-highest in the world. Guatemala — which is currently facing its own criminalization crisis as lawyers, judges, and other officials are persecuted for fighting corruption and impunity — was also among the countries with the most SLAPPs. This is especially concerning given that the study only included lawsuits brought directly by corporations. In reality, corporate actors contribute to the criminalization of human rights defenders in less obvious ways, leveraging close relationships with the state.

Histories of Land Conflicts

In recent years, Honduras and Guatemala have routinely been named among the most dangerous countries in the world for land-rights and environmental advocates. In 2020, despite their relatively small populations, both countries were among the seven with the most killings of such activists, according to a report by the NGO Global Witness. The report notes that mining and agribusiness alone “have been linked to over 30% of all the killings that Global Witness has documented against land and environmental defenders” since 2015, and water and dams constituted one of the worst-offending sectors in 2020, with 20 documented killings. The report names “unaccountable corporate power” as “the underlying force that has . . . continued to perpetuate the killing of defenders.”

The ongoing confrontations between corporations and environmental and land-rights defenders are many years in the making. In Honduras, new land policies in the 1990s facilitated the controversial transfer of land from local communities to individual landowners and large private companies, prompting protest and resistance. In the wake of the 2009 coup d’état, the violence escalated as the ruling National Party promoted the expansion of agribusiness and extractive industries, even sending in the military to quash opposition. Particularly in the Bajo Aguán Valley, where Guapinol is located, local communities found themselves under attack from both public security forces and private security officers employed by the companies.

In Guatemala, following the end of the country’s civil war in 1996, legislative changes prompted a rapid rise in mining concessions and facilitated the concentration of land in the hands of agribusiness enterprises. In recent decades, large-scale cultivation of palm oil and sugar cane has exploded. For many indigenous Maya communities, these developments are just the latest chapter in a legacy of land dispossession that goes back centuries. Activists defending their territories — as well as their rights to be consulted as indigenous peoples — have been murdered and criminalized, and the state has responded to protests with excessive force and even states of siege.

Throughout these conflicts, the misuse of criminal legal systems has gone hand in hand with outright violence as a tool for suppressing land-rights advocacy. In Honduras, for example, the 2009 coup ushered in a wave of arbitrary arrests and detentions, and hundreds of people were prosecuted for crimes like “usurpation.” Figures provided by the organization Vía Campesina indicate that at least 7,000 people had been prosecuted in connection to their land rights activism by 2019. These tactics are employed not only to neutralize and instill fear in individual activists, but also to weaken their movements and stigmatize human rights defenders as “criminals” in the eyes of society at large.

The Role of U.S. Investment

U.S. policymakers should be paying close attention to these events. The United States, through its own development agencies as well as international finance institutions, already has a history of financing projects linked to violence against human rights defenders. For instance, just months before renowned Honduran activist Berta Cáceres was murdered in March 2016 for her opposition to a hydroelectric dam, USAID signed an agreement with the hydroelectric company in support of the project. And the International Finance Corporation of the World Bank invested U.S. dollars in Dinant Corporation, an agribusiness conglomerate that has been implicated in numerous human rights abuses against farmers and land-rights activists.

The U.S. government and U.S. corporations have also invested in megaprojects that resulted in the criminalization of activists, including those arrested for defending the Guapinol and San Pedro rivers. At the time, the mining project they opposed enjoyed the backing of Nucor Corporation, a U.S. steel company with government ties. During former President Donald Trump’s 2016 run for office, his trade advisors included a former Nucor CEO and Nucor ally Peter Navarro; the latter served as a top trade advisor during his presidency. Trump’s campaign donors included Nucor executives and a Nucor PAC. And when Biden took office in 2021, he named a Nucor board member, retired U.S. Army General Lloyd Austin, as defense secretary (Austin resigned his board membership upon taking office). Nucor says that due to the social unrest surrounding the mining activities near Guapinol, it extracted itself from the project in October 2019, but that was well after Inversiones Los Pinares began launching criminal proceedings against local residents.

In Guatemala, over 100 people were criminalized for their opposition to the Escobal mine owned by Tahoe Resources, a Canadian company with headquarters in Nevada. Other activists have been shot by Tahoe security guards and even killed. (RFKHR is litigating the case of Topacio Reynoso, a murdered 16-year-old environmental activist who had protested the Escobal mine, before the Inter-American Commission on Human Rights.)

In another recent example, activists opposed to the Jilamito dam project in Honduras have been criminalized, and a lawyer supporting their cause was murdered. The project was being financed by the Inter-American Development Bank (IADB) and the Development Finance Corporation (DFC) in connection with the America Crece initiative launched under Trump. The DFC eventually pulled its support, but the IADB has not done so.

USAID itself, after stepping up its vetting process with respect to “conflicts around water access, land tenure, and human rights violations” in Honduras, acknowledged that “in sectors where land and human rights violations are endemic, identifying viable [private sector] partners has been extremely challenging.” In response, the agency “stepped back from these areas,” perhaps recognizing the virtual impossibility of promoting private investment in these sectors without inflaming local conflicts.

Bolstering companies that threaten, attack, and criminalize human rights defenders is objectionable in itself, but it also contravenes the United States’ own goals. When unscrupulous business actors grab land and stoke conflicts over natural resources, they contribute to violence, displacement, food insecurity, and economic hardship, driving further migration from Honduras and Guatemala to the United States. For activists, the risk of violence and criminalization is particularly acute: Movement leaders are often singled out and threatened with death or prosecution, forcing them to flee the country. According to The Guardian, the threat of criminalization had driven at least four members of the Guapinol community to seek asylum in the United States by June 2020.

The Biden-Harris Approach

In light of this history and the clear risks of investing in energy and agribusiness in Central America, it is puzzling that Vice President Harris’s first move would be to tout alliances with corporate actors in these very industries. Agroamérica, for instance, is one of six business groups that dominate Guatemala’s fraught palm oil industry, while Cargill and PepsiCo import Guatemalan palm oil in significant quantities.

Cargill and PepsiCo source palm oil from NaturAceites, a company involved in territorial conflicts with local Maya Q’eqchi’ communities. Residents have been arrested and prosecuted, at least one has been shot and killed by police, and hundreds have been forcibly evicted from disputed land.

Cargill also recently resumed its relationship with palm oil supplier Reforestadora de Palma S.A. (REPSA), just a few years after cutting ties due to environmental and human rights concerns. In 2015, after REPSA was held responsible for contaminating a river and a judge ordered the company to suspend its operations, a lead plaintiff in the case — indigenous human rights defender Rigoberto Lima Choc — was murdered near the courthouse, and three other activists were kidnapped and detained by REPSA employees.

Another participant in Harris’s initiative is Fundación Terra, the philanthropic arm of the Honduran energy company Terra Inversiones (Grupo Terra). Grupo Terra is linked to several energy projects that have generated social conflict and criminalization in both Guatemala and Honduras; in the latter case, the authorities prosecuted dozens of people from the local community who expressed their opposition to the project, accusing them of seizing an electrical substation affiliated with Grupo Terra’s energy division.

These companies’ involvement in conflict-ridden industries, in and of itself, is not evidence that their new commitments will give rise to human rights violations. Nevertheless, it raises obvious red flags and should trigger careful scrutiny. For example, before policymakers celebrate a commitment from Cargill to “create jobs,” they should make sure the funds will not go to a palm oil enterprise that displaces small-scale farmers, destroys their livelihoods, and essentially forces them to work on the palm plantation for abysmally low pay — or migrate north, as many have done already. (This is no mere hypothetical: Jakelin Caal, the seven-year-old migrant who died in U.S. custody in 2018, came from a village in Guatemala where palm producer Industria Chiquibul — a Cargill supplier at the time — allegedly “obliged” some farmers to sell their land and paid its workers well below the legal minimum wage. Workers who stood up for their labor rights have been arrested, and according to independent media outlet Prensa Comunitaria, four have been sentenced to prison terms.)

Better still, the U.S. government should ensure that if corporate actors are to benefit directly from U.S. investment and private-public partnerships, they must have strong human rights track records and robust due diligence practices to identify and avoid potential violations. U.S. policymakers need not invent such safeguards from scratch, but can build upon existing frameworks and best practices; looking to the U.N. Guiding Principles on Business and Human Rights and the efforts of the U.N. Working Group on Business and Human Rights would be a good start. Without adequate vetting processes and human rights protections — especially where the energy, agribusiness, and extractive industries are involved — the Biden administration may not just fail to ameliorate the situation of violence and criminalization that human rights defenders face in Guatemala and Honduras; it may exacerbate it instead.

IMAGE: People demonstrate for the liberation of 13 convicted environmentalists with a banner depicting murdered Honduran environmental leader Berta Caceres as they arrive for a hearing in the country’s capital, Tegucigalpa, on February 28, 2019. Thirteen environmental leaders of the Guapinol community, Tocoa municipality, Colon department, who oppose the mining exploitation of the Montana de Botaderos National Park by the company Inversiones Los Pinares, were arrested on charges of usurpation, burning, aggravated theft and illicit association. (Photo by ORLANDO SIERRA/AFP via Getty Images)