Genocide in the Rainforest: Legal Analysis
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Legal Analysis
August 2006
By Aaron Page |
María AGUINDA y Otros vs. CHEVRONTEXACO Corporation
Corte Superior de JusticiaNueva Loja, EcuadorCorte Superior de Justicia
Corte Superior de JusticiaNueva Loja, EcuadorNueva Loja, Ecuador Juicio No. 002-2003
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The Environmental and Cultural Destruction of CHEVRON in Ecuador as Acts of Genocide and Crimes Against Humanity Prohibited Under International Criminal Law
INTRODUCTION
Genocide is the most grave of international crimes. Its sanction should not be imposed or imputed lightly. The indigenous plaintiffs in Aguinda v. ChevronTexaco, the environmental trial in Ecuador, understand this better than anyone. After all, the crimes of physical and cultural genocide are uniquely tailored to protect groups just like theirs—groups placed by historical circumstances in a vulnerable position vis a vis powerful antagonists whose prejudices against them are deeply-rooted and undeniable[1]—and thus they more than anybody have an interest in maintaining at its highest the unique moral potency of the genocide prohibition. However, the moral potency of the genocide prohibition is unique because it protects uniquely precious human values, in particular the value of the diversity of human groups and cultural traditions, which represents the range of perspective, wisdom, and experience that enriches all of humanity. When these uniquely precious values come under attack, it cannot be acceptable to look the other way.
The Convention on the Prevention and Punishment of the Crime of Genocide declares that it is an act of genocide to "inflict on [a] group conditions of life calculated to bring about its physical destruction in whole or in part."[2] This submission analyzes the actions of Texaco Corporation (now Chevron Corporation) respecting the indigenous peoples residing in its concession area in Ecuador from 1964-1990. This analysis concludes that the company's overwhelming and largely unnecessary environmental contamination, combined with the personal abuse and intimidation inflicted by Texaco employees, is powerful circumstantial evidence of an intent to wipe out these indigenous communities, in criminal violation of the Convention. Although Ecuador has been a signatory to the Convention since 1949, and under the Ecuadorian Constitution crimes of genocide never prescribe,[3] Aguinda v. ChevronTexaco is a civil trial and thus may not be the optimal forum to formally raise the genocide charge. However, understanding the scope of coincidence between Chevron's acts and the crime of genocide, however, is critical to understanding the nature of the violation that indigenous plaintiffs have suffered and that is the basis of their claims.
FACTS
1. For centuries, perhaps even millenia, numerous indigenous peoples in Ecuador, including the Amazonian Kichwa, Cofán, Secoya, Siona, and Huaorani, claimed what would later become Texaco's oil exploration concession area, or "Block 13," as their homeland.[4] These peoples suffered tremendous losses in the 16th century, owing to the slaughter, enslavement, and disease brought by the newly arrived Spanish conquistadors, and suffered a second round of oppression during the "rubber boom" of the late 19th century, but recovered significantly such that by the middle of the 20th century many of the communities of the Aguarico and Napo Rivers numbered in the thousands or even tens of thousands and were living comfortably.[5] With the exception of a few missionary enclaves, they were largely unmolested by outside influences—certainly, they were "unconquered."
2. The peoples in what would become Texaco's concession depended on the natural rainforest environment literally body and soul: rivers and streams provided drinking water, bathing sites, and plentiful fish; the forest canopy housed nutritious prey including caiman, tapir, charapa, howler monkey, and a variety of birds; and the forest plants provided food, building and clothing materials, and a vast array of medicinal remedies that continues to astound ethnobotanists (not to mention multinational pharmaceutical companies).[6] Certain plants were also integral to the peoples' cultural and religious tradition, in particular the banísteriopsis caapi, or yagé, that the Secoya and Siona peoples in particular relied on to guide their communications with their ancestor spirits and deepen their understanding of the selva and its healing powers. The connection between the indigenous peoples and their lands has been described as a "deeply spiritual special relationship” that is “as basic to their existence as such and to all their beliefs, customs, traditions and culture."[7] This special relationship lies at the heart of international recognition of indigenous rights.
3. The commencement of Texaco's exploration and production activity in Ecuador in the mid 1960s marked the end of life as the region's indigenous peoples had until then known it. While it is possible to produce oil without massive trauma to the environment and surrounding populations, as demonstrated by oil operations elsewhere in the world at the time and by more conscientious recent oil operations in the Oriente itself, this is not the approach Texaco took. Texaco started with a massive campaign of seismic tests, clearing thousands of heliports and detonating earth-shattering explosions at one-kilometer intervals.[8] Once exploratory drilling and full-scale production began, Texaco made the decision not to properly dispose of toxic byproducts such as excess crude, drilling muds, drilling and separation chemicals, and produced water, but instead to dump them into poorly-constructed earthen pits[9] or in many cases channel them directly into surrounding rivers and streams—the very same rivers and streams used by the indigenous peoples for drinking water, bathing, and fishing. The decision was particularly tragic in light of the fact that proper disposal techniques were not only available[10] and known to be cost effective[11], but had been used by the company for decades in the United States and other jurisdictions.[12]
4. Texaco chose to categorize the gas naturally produced along with the crude not as a resource for further processing, but as a waste product to be "flared" without any temperature or air quality controls, resulting in massive air pollution and incidences of soot-filled "black rain."[13] To keep down dust on the roads it built, Texaco periodically coated them with untreated crude oil, that naturally ran off into local surface water during the rains. Finally, Texaco constructed a notoriously shoddy separation and transportation infrastructure which, combined with "poor maintenance and operational sloppiness" on the part of the operator (Texaco) resulted in regular, massive oil spills which further made the rivers run black with oil.[14] Again, the tragedy is that none of these decisions and practices were necessary to the cost-effective exploitation of oil in the region, and were in stark contrast with the company's obligations under its contracts and Ecuadorian law requiring it to "employ modern and efficient machinery," to "adopt all necessary measures to protect the flora, fauna, and other natural resources," and to "avoid contamination of waters, air, and lands."[15]
5. Indigenous peoples not only suffered the environmental destruction unleashed by Texaco, they also claim to have suffered directly at the hands of Texaco employees themselves. According to firsthand witness testimony gathered by the plaintiffs in the Aguinda case, some Texaco employees heaped abuse on indigenous individuals and subjected indigenous women to sexual harassment. Among the stories that are now tragically part of the oral traditions of the region's indigenous peoples are: the girl who accepted an offer of a "thrill ride" in a Texaco helicopter, only to be taken to a remote site and raped by oil workers; the foreign oil workers who told a group of upset indigenous individuals not to worry about the pollution because petroleum was natural and healthy—"like milk"; and many more. As their traditional ability to live off the rainforest declined—as the fish died, the animals fled due to the seismic testing and excessive hunting by oil workers, and the forest itself was chopped down to clear land for roads, platforms, or provide materials for the same—indigenous women were forced to prostitute themselves to provide for their children, and indigenous men were forced to enter oil company service, taking the most dangerous jobs for the lowest pay.
6. The natural human response to the flood of environmental contamination and personal abuse described above—namely, to flee the area—was undoubtedly difficult to accept at first for peoples with such a long history and deep connection with the particular lands in question. Ultimately, it was the only option. For example, the epicenter of the ancestral lands of the Cofán people were in what today is Lago Agrio, precisely where Texaco's oil operations began. In the 1970s, when the environmental situation and pressure from Texaco finally became intolerable, the Cofanes in this area fled 20 kilometers down the Aguarico and established the new settlement of Dureno. But in the mid-1980s—after almost 20 years of experience watching the destructive impact of pollution and roads on indigenous culture and livelihood—Texaco decided to follow the Cofanes into the jungle and began developing the Guanta oil field, just kilometers from Dureno. Within a few years, Dureno was surrounded on all sides by wells, pipelines, and massive oil separation stations,[16] together dumping millions of gallons of produced water directly into the surface water and leaching toxic drilling wastes through dozens of unlined earthen pits. The Cofanes found themselves faced with the same question: abandon their new village and flee further outside their traditional homeland, or stay put and continue to suffer the effects of ever more contamination and abuse by Texaco. This time the community fractured, as some Cofanes chose to continue fleeing down the Aguarico, while others chose to stay, convinced that no matter how many times they relocated the company would always be one step behind. In only a few years, the Cofanes went from a prosperous, contented existence to being impoverished, displaced, and divided. Other indigenous peoples in Texaco's concession area suffered similar, or worse, fates. One community, the Tetetes, known to have inhabited the region just north of Lago Agrio when Texaco arrived,[17] has now disappeared entirely. The full story of their last years, along with the full story of their entire history, disappeared with them.
LEGAL ANALYSIS
The Crime of Genocide Under International Law
7. The international criminal prohibition of genocide, and indeed the term genocide itself, emerged shortly after World War II as the international community struggled to comprehend, and properly condemn, the horror of the Holocaust and other Nazi crimes. The concept of genocide was developed by a Polish law professor, Rafael Lemkin, who himself narrowly escaped the Holocaust. For Lemkin, the genocide threat came in three forms, each of which was prohibited in the United Nations Draft Convention on the Prevention and Punishment of the Crime of Genocide that quickly followed his work: Physical genocide was criminalized in Articles II(a)-(c) of the Draft Convention, biological genocide was criminalized in Articles II(d)-(e), and cultural genocide was criminalized in Article III.[18] At the last minute, the latter Article on cultural genocide was removed from the final Convention at the behest of the United States, which was concerned that it would be invoked against its own highly controversial (and now widely condemned) "assimilationist" policies towards Native Americans.[19]
8. Although the exclusion of explicit cultural genocide provisions may have been a political necessity at the time, it hardly squares with the thrust of the document or the underlying concept of genocide.[20] Professor Lemkin himself strenuous argued that "if the diversity of cultures were destroyed, it would be as disastrous for civilization as the physical destruction of nations."[21] Legally, genocide achieves an elevated status of prohibition over its predicate offenses (e.g., "killing") by protecting not just the individual but the group identity, which is as well or perhaps better defined by reference to inter-personal cultural factors as it is to the physicalities of the group's individual constituents. In other words, if the "genos" (or "tribe," in Greek) is what you want to protect from "cide" (or "killing," in Latin), you had better protect the culture that defines the genos equally with the individuals who constitute it.
9. This insight is probably why the sub-concept of cultural genocide, far from disappearing after its exclusion from the Convention, has increasingly grown in stature to the point where commentators believe it is now part of customary international law. In 1981, the UN sponsored an international legal conference on the topic, which ultimately concluded in the San José Declaration that "ethnocide, i.e. cultural genocide, is a crime against international law, as is genocide."[22] In 1994, the Draft Declaration on the Rights of Indigenous Peoples declared that indigenous peoples
have the collective and individual right not to be subjected to ethnocide and cultural genocide, including prevention of and redress for . . . [a]ny action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities [and] [a]ny action which has the aim or effect of dispossessing them of their lands, territories or resources.[23]
10. Many other basic international human rights documents support the prohibition on cultural genocide, albeit it less directly, including the International Covenant on Civil and Political Rights,[24] which in Article 27 states that members of ethnic, religious or linguistic minorities "shall not be denied the right, in community with the other members of their group, to enjoy their own culture." Similarly, numerous provisions of the International Covenant on Economic, Social and Cultural Rights,[25] the International Labor Organization's Convention Concerning Indigenous and Tribal Peoples (No. 169)[26], and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights[27] clearly articulate cultural rights which effectively prohibit cultural genocide. Claims involving aspects of cultural genocide against indigenous peoples have also been considered and supported by the UN Human Rights Commission,[28] the Inter-American Commission on Human Rights,[29] and the work of UN Special Rapporteurs.[30] Together these treaties, declarations, and authoritative interpretations have elevated the prohibition of cultural genocide to the level of customary international law, binding at a minimum on those states (and derivatively, a state's hired actors) that have fully participated in that specific customary law-making process, including Ecuador.[31]
11. Although none of the very limited number of actual genocide prosecutions have as of yet involved environmental crimes, many scholars of international criminal justice have already noted the potential that environmental crimes might serve as predicate offenses for a charge of genocide or other international crimes.[32] In the very relevant words of one commentator:
[A] careful analysis reveals that the various acts of genocide [as currently] defined ... permit an interpretation that protects groups whose existence is threatened by environmental degradation. The subjection of a group to conditions of existence calculated to destroy the group in whole or in part can be effectuated through destruction of the vital space in which the group lives. This reality appears with greater visibility in cases of indigenous communities that are materially and spiritually tied to their environment. In these cases, the cultural integrity of the group, firmly associated with the health of the land, can be definitively changed through environmental degradation.[33]
Chevron's Destruction in Ecuador as a Genocide Against Indigenous Plaintiffs
12. The Genocide Convention declares that it is an act of genocide for any person[34] to "inflict on [a] group conditions of life calculated to bring about its physical destruction in whole or in part."[35] This definition has several requirements. First, the "group" must be a "national, ethnical, racial or religious"—a Convention definition that is very controversial in many cases, but is no hurdle to indigenous plaintiffs, who are clearly defined by least one (and indeed perhaps all) of the criteria. Another requirement is that the act be "calculated to bring about [the group's] physical destruction." This suggests a strong intent or scienter element, and indeed most international legal authorities interpreting the Convention have held that the crime requires proof of specific intent to achieve genocide, not just intent to achieve acts that ultimately result in genocide.[36] However, as many authorities have noted, in most cases it is quite unlikely that any defendant would openly declare specific genocidal intent, and thus intent in most cases will have to be inferred from a close analysis of the circumstances.[37] In other words, "a court should be able to infer the necessary intent from . . . actions or omissions of such a degree of criminal negligence or recklessness that the defendant must reasonably be assumed to have been aware of the consequences of his conduct."[38] A second important point is that this inference will not be thwarted by a defendant's putting forth an additional, legitimate motive to "whitewash" the acts of genocidal intent. As stated by the International Campaign to End Genocide: "Whatever may be the motive for the crime (land expropriation, national security, territorial integrity, etc.,) if the perpetrators commit acts intended to destroy a group, even part of a group, it is genocide."[39]
13. The massive environmental contamination "inflicted" by Chevron on the indigenous peoples in its concession area was certainly capable of achieving their physical destruction. Whether it was specifically calculated to do so is a more complicated question, but on balance, circumstantial factors suggest that it might have been. Primary among these is that the environmental practices that most threatened indigenous destruction, such as the dumping of huge quantities of produced water directly into their drinking water sources, never would have been allowed, and in many cases would have been criminally sanctioned, in the United States or any other developed country. Chevron's defense is sure to be that the environmental decisions it made were based in a technical assessment of the environment and operational demands, or at worst they were made simply to save money. However, as discussed above, these non-genocidal motives cannot "whitewash" other evidence of intent. When it is fully understood how flagrantly inadequate the company's environmental safeguards were in light of the established standards it was familiar with in the United States; how one sees the oil pits built with elaborate channels to carry waste run-off hundreds of meters to be deposited directly into a locally-used stream; and how less destructive and cost-effective alternatives were easily available to the company, this defense that the company did not really intend to put an end to these groups becomes increasingly hard to credit.
14. It is undisputed that Texaco knew that indigenous people were living in the vicinity of its operations and relying on the natural environment for their subsistence. Texaco also knew that these peoples pre-dated their existence, and might, as time went on, fight back against Texaco's presence on their lands or otherwise become a threat to its production designs. For example, the ILO's first Indigenous and Tribal Populations Convention (No. 107), which was adopted by the ILO in 1957 and ratified by Ecuador in 1969, clearly affirms "[t]he right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognized." Texaco may also have considered the indigenous peoples a security threat to be neutralized. Plaintiffs have argued from the beginning of this case that the shameful "technology gap" between Texaco's operations in Ecuador and its operations in developed countries is due in part to the company's entrenched racism. This racism painted indigenous peoples as vicious savages who had to be monitored and neutralized—an attitude that continues to be manifested in Chevron's handling of the litigation today.[40] As such, Texaco executives in charge of Oriente operations may have decided to open the floodgates on the contaminatory capacity of its operations as a way to make these problematic peoples "disappear."[41]
Chevron's Destruction in Ecuador as a Cultural Genocide Against Indigenous Plaintiffs
15. As discussed above, even though the criminalization of cultural genocide was stripped from the Genocide Convention at the behest of the United States, the prohibition of cultural genocide has gradually become part of customary international law, such that while it may not bind individuals and obligate authorities to prosecute with the same universal force as the genocide prohibition, it is still a violation of international law and is binding at least on those states (and derivatively, their deputized state actors, such as Texaco) who have participated in its evolution in customary law and have not expressly refused to be bound.[42] The ultimately excluded provision from the Draft Convention still provides the most authoritative definition of the crime. That Convention would have criminalized "any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin or religious belief," and listed as an archetypal example the "destroying, or preventing the use of, libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group."[43] Another proposed example was "subjecting members of a group to such conditions as would cause them to renounce their language, religion or culture."[44]
16. For the indigenous peoples of the Aguarico and Napo rivers, as discussed above, the rainforest in Texaco's concession area served not only as a bountiful supplier of all basic necessities of life, but also as the "institution" fulfilling all of the cultural roles that the European drafters of the Draft Convention in 1948 ascribed to "libraries, museums, schools, historical monuments, places of worship or other cultural institutions." The rainforest served as their huge repository of knowledge about the natural world and the human body[45]; it was where children were taught everything from basic survival to the meaning of life; it was where they worshiped, and where they remembered. Thus appreciating indigenous culture, it seems unquestionable that the wanton, unnecessary spoliation and destruction of the all-encompassing resource on which the culture so utterly relied would effect a cultural genocide.
17. It is not unreasonable to believe that Texaco executives were fully aware of the depth of indigenous connection with and reliance on the rainforest for their cultural survival. As discussed above, the issue of indigenous peoples and their relationships to ancestral land—as well as their inherent claims of ownership over those lands—were much discussed in the 1960s and 1970s, and were certainly on the radar screen of knowledgeable business people who lived and maintained commercial operations on indigenous territory.[46] Certainly it is reasonable to believe that by the mid-1980s, when Texaco executives made the decision to enter Cofán territory near Dureno and enact the exact same practices and technology resulting in massive and unnecessary contamination as in Lago Agrio a decade earlier, they must have been aware of the indigenous condition and the impact they were having. As discussed in paragraph 14 above, Texaco's otherwise inexplicable contamination-causing decisions are much more explicable when seen as attempts to pressure and eventually extinguish surrounding indigenous cultures that the company perceived as a threat.
Chevron's Destruction in Ecuador as a Crime Against Humanity Against All Plaintiffs
18. International criminal law prohibits a number of offenses besides genocide, including a range of offenses now called "crimes against humanity." These offenses were legally condemned under international law shortly after World War II, in the Nuremberg Charter in 1945 that was used to try Nazi leaders.[47] The understanding of these crimes has evolved in customary international law over the last 60 years; the most recent and authoritative version is found in the Rome Statute[48] establishing the International Criminal Court.[49] Ecuador ratified the Rome Statute on February 5, 2002, and by its terms is obligated to prosecute the offenses defined therein, including crimes against humanity, or to allow and assist the ICC in doing so.[50]
19. The codification in the Rome Statute clarifies several important points about crimes against humanity: the prohibitions do not require any relationship to international armed conflict[51]; they apply to individual actors equally as to state actors[52]; they protect "any civilian population"[53]; and the only "intent" required is intent to commit the specific prohibited acts—that is, there is no requirement that the acts be motivated by by any particular animus or state of mind.[54] Rather, the difficult evidentiary requirement for a crime against humanity, as currently defined in international law, is that the alleged action be "widespread or systematic," further defined as "a course of conduct involving the multiple commission of [prohibited] acts," in furtherance of an "organizational policy to commit such acts."[55] In respect of its organized, decades-long operations in the Oriente, Chevron cannot deny that these legal elements are satisfied.
Among the acts considered crimes against humanity when committed on a widespread and systematic basis are deportation, further defined as "forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present," and "inhumane acts ... intentionally causing great suffering."[56] According to these definitions and the facts as discussed above, Texaco's environmental policies and other behaviors respecting indigenous peoples in its concession area from 1964-1990 appear to constitute crimes against humanity in a number of respects. The most obvious is the forced displacement of the entire Cofán people from the Lago Agrio area, and later the displacement of part of the community from Dureno, as discussed above.[57] Although the Cofanes were not physically transported by Texaco employees from place to place, the company's massive environmental contamination and other abuse clearly constitute "coercive acts" within the scope of the definition. Poisoning someone's drinking water is about as sure a way to force someone to relocate as pointing as gun to their head. Indeed, international legal commentators have already noted that "cases of serious environmental destruction that cause great suffering to the civilian population due to forced displacement or deprivation of means of subsistence" may well qualify as crimes against humanity.[58] Texaco's policies and behavior also appear to qualify as "inhumane acts" within the provided definition.[59] At minimum, an act can be considered "inhumane" if it severely and intentionally violates a fundamental right under international law. Texaco's policies and behaviors clearly violated plaintiffs' right to a minimally healthy environment,[60] as well as the underlying fundamental rights to life and to health.[61]
Conclusion
20. Chevron, as the successor-in-interest to Texaco’s operations in Ecuador, is now the responsible party for the enviornmental and cultural destruction of indigenous groups committed by Texaco executives and employees as part of official company policy.
15. As discussed above, even though the criminalization of cultural genocide was stripped from the Genocide Convention at the behest of the United States, the prohibition of cultural genocide has gradually become part of customary international law, such that while it may not bind individuals and obligate authorities to prosecute with the same universal force as the genocide prohibition, it is still a violation of international law and is binding at least on those states (and derivatively, their deputized state actors, such as Texaco) who have participated in its evolution in customary law and have not expressly refused to be bound. The ultimately excluded provision from the Draft Convention still provides the most authoritative definition of the crime. That Convention would have criminalized "any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin or religious belief," and listed as an archetypal example the Another proposed example was 16. For the indigenous peoples of the Aguarico and Napo rivers, as discussed above, the rainforest in Texaco's concession area served not only as a bountiful supplier of all basic necessities of life, but also as the "institution" fulfilling all of the cultural roles that the European drafters of the Draft Convention in 1948 ascribed to "libraries, museums, schools, historical monuments, places of worship or other cultural institutions." The rainforest served as their huge repository of knowledge about the natural world and the human body; it was where children were taught everything from basic survival to the meaning of life; it was where they worshiped, and where they remembered. Thus appreciating indigenous culture, it seems unquestionable that the wanton, unnecessary spoliation and destruction of the all-encompassing resource on which the culture so utterly relied would effect a cultural genocide. 17. It is not unreasonable to believe that Texaco executives were fully aware of the depth of indigenous connection with and reliance on the rainforest for their cultural survival. As discussed above, the issue of indigenous peoples and their relationships to ancestral land—as well as their inherent claims of ownership over those lands—were much discussed in the 1960s and 1970s, and were certainly on the radar screen of knowledgeable business people who lived and maintained commercial operations on indigenous territory. Certainly it is reasonable to believe that by the mid-1980s, when Texaco executives made the decision to enter Cofán territory near Dureno and enact the exact same practices and technology resulting in massive and unnecessary contamination as in Lago Agrio a decade earlier, they must have been aware of the indigenous condition and the impact they were having. As discussed in paragraph 14 above, Texaco's otherwise inexplicable contamination-causing decisions are much more explicable when seen as attempts to pressure and eventually extinguish surrounding indigenous cultures that the company perceived as a threat.
12. The Genocide Convention declares that it is an act of genocide for any person to This definition has several requirements. First, the "group" must be a "national, ethnical, racial or religious"—a Convention definition that is very controversial in many cases, but is no hurdle to indigenous plaintiffs, who are clearly defined by least one (and indeed perhaps ) of the criteria. Another requirement is that the act be " to bring about [the group's] physical destruction." This suggests a strong intent or element, and indeed most international legal authorities interpreting the Convention have held that the crime requires proof of to achieve genocide, not just intent to achieve acts that ultimately result in genocide. However, as many authorities have noted, in most cases it is quite unlikely that any defendant would openly declare specific genocidal intent, and thus intent in most cases will have to be inferred from a close analysis of the circumstances. In other words, A second important point is that this inference will not be thwarted by a defendant's putting forth an additional, legitimate motive to "whitewash" the acts of genocidal intent. As stated by the International Campaign to End Genocide: "Whatever may be the for the crime (land expropriation, national security, territorial integrity, etc.,) if the perpetrators commit acts to destroy a group, even part of a group, it is genocide." 13. The massive environmental contamination "inflicted" by Chevron on the indigenous peoples in its concession area was certainly capable of achieving their physical destruction. Whether it was specifically to do so is a more complicated question, but on balance, circumstantial factors suggest that it might have been. Primary among these is that the environmental practices that most threatened indigenous destruction, such as the dumping of huge quantities of produced water directly into their drinking water sources, never would have been allowed, and in many cases would have been criminally sanctioned, in the United States or any other developed country. Chevron's defense is sure to be that the environmental decisions it made were based in a technical assessment of the environment and operational demands, or at worst they were made simply to save money. However, as discussed above, these non-genocidal motives cannot "whitewash" other evidence of intent. When it is fully understood how flagrantly inadequate the company's environmental safeguards were in light of the established standards it was familiar with in the United States; how one sees the oil pits built with elaborate channels to carry waste run-off hundreds of meters to be deposited directly into a locally-used stream; and how less destructive and cost-effective alternatives were easily available to the company, this defense that the company did not really intend to put an end to these groups becomes increasingly hard to credit. As such, Texaco executives in charge of Oriente operations may have decided to open the floodgates on the contaminatory capacity of its operations as a way to make these problematic peoples "disappear." 15. As discussed above, even though the criminalization of cultural genocide was stripped from the Genocide Convention at the behest of the United States, the prohibition of cultural genocide has gradually become part of customary international law, such that while it may not bind individuals and obligate authorities to prosecute with the same universal force as the genocide prohibition, it is still a violation of international law and is binding at least on those states (and derivatively, their deputized state actors, such as Texaco) who have participated in its evolution in customary law and have not expressly refused to be bound. The ultimately excluded provision from the Draft Convention still provides the most authoritative definition of the crime. That Convention would have criminalized "any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin or religious belief," and listed as an archetypal example the Another proposed example was 16. For the indigenous peoples of the Aguarico and Napo rivers, as discussed above, the rainforest in Texaco's concession area served not only as a bountiful supplier of all basic necessities of life, but also as the "institution" fulfilling all of the cultural roles that the European drafters of the Draft Convention in 1948 ascribed to "libraries, museums, schools, historical monuments, places of worship or other cultural institutions." The rainforest served as their huge repository of knowledge about the natural world and the human body; it was where children were taught everything from basic survival to the meaning of life; it was where they worshiped, and where they remembered. Thus appreciating indigenous culture, it seems unquestionable that the wanton, unnecessary spoliation and destruction of the all-encompassing resource on which the culture so utterly relied would effect a cultural genocide. 17. It is not unreasonable to believe that Texaco executives were fully aware of the depth of indigenous connection with and reliance on the rainforest for their cultural survival. As discussed above, the issue of indigenous peoples and their relationships to ancestral land—as well as their inherent claims of ownership over those lands—were much discussed in the 1960s and 1970s, and were certainly on the radar screen of knowledgeable business people who lived and maintained commercial operations on indigenous territory. Certainly it is reasonable to believe that by the mid-1980s, when Texaco executives made the decision to enter Cofán territory near Dureno and enact the exact same practices and technology resulting in massive and unnecessary contamination as in Lago Agrio a decade earlier, they must have been aware of the indigenous condition and the impact they were having. As discussed in paragraph 14 above, Texaco's otherwise inexplicable contamination-causing decisions are much more explicable when seen as attempts to pressure and eventually extinguish surrounding indigenous cultures that the company perceived as a threat.
1. For centuries, perhaps even millenia, numerous indigenous peoples in Ecuador, including the Amazonian Kichwa, Cofán, Secoya, Siona, and Huaorani, claimed what would later become Texaco's oil exploration concession area, or "Block 13," as their homeland. These peoples suffered tremendous losses in the 16th century, owing to the slaughter, enslavement, and disease brought by the newly arrived Spanish conquistadors, and suffered a second round of oppression during the "rubber boom" of the late 19th century, but recovered significantly such that by the middle of the 20th century many of the communities of the Aguarico and Napo Rivers numbered in the thousands or even tens of thousands and were living comfortably. With the exception of a few missionary enclaves, they were largely unmolested by outside influences—certainly, they were "unconquered." 2. The peoples in what would become Texaco's concession depended on the natural rainforest environment literally body and soul: rivers and streams provided drinking water, bathing sites, and plentiful fish; the forest canopy housed nutritious prey including caiman, tapir, charapa, howler monkey, and a variety of birds; and the forest plants provided food, building and clothing materials, and a vast array of medicinal remedies that continues to astound ethnobotanists (not to mention multinational pharmaceutical companies). Certain plants were also integral to the peoples' cultural and religious tradition, in particular the , or , that the Secoya and Siona peoples in particular relied on to guide their communications with their ancestor spirits and deepen their understanding of the selva and its healing powers. The connection between the indigenous peoples and their lands has been described as a "deeply spiritual special relationship” that is “as basic to their existence as such and to all their beliefs, customs, traditions and culture." This special relationship lies at the heart of international recognition of indigenous rights. 3. The commencement of Texaco's exploration and production activity in Ecuador in the mid 1960s marked the end of life as the region's indigenous peoples had until then known it. While it is possible to produce oil without massive trauma to the environment and surrounding populations, as demonstrated by oil operations elsewhere in the world at the time and by more conscientious recent oil operations in the Oriente itself, this is not the approach Texaco took. Texaco started with a massive campaign of seismic tests, clearing thousands of heliports and detonating earth-shattering explosions at one-kilometer intervals. Once exploratory drilling and full-scale production began, Texaco made the decision not to properly dispose of toxic byproducts such as excess crude, drilling muds, drilling and separation chemicals, and produced water, but instead to dump them into poorly-constructed earthen pits or in many cases channel them directly into surrounding rivers and streams—the very same rivers and streams used by the indigenous peoples for drinking water, bathing, and fishing. The decision was particularly tragic in light of the fact that proper disposal techniques were not only available and known to be cost effective, but had been used by the company for decades in the United States and other jurisdictions. 4. Texaco chose to categorize the gas naturally produced along with the crude not as a resource for further processing, but as a waste product to be "flared" without any temperature or air quality controls, resulting in massive air pollution and incidences of soot-filled "black rain." To keep down dust on the roads it built, Texaco periodically coated them with untreated crude oil, that naturally ran off into local surface water during the rains. Finally, Texaco constructed a notoriously shoddy separation and transportation infrastructure which, combined with "poor maintenance and operational sloppiness" on the part of the operator (Texaco) resulted in regular, massive oil spills which further made the rivers run black with oil. Again, the tragedy is that none of these decisions and practices were necessary to the cost-effective exploitation of oil in the region, and were in stark contrast with the company's obligations under its contracts and Ecuadorian law requiring it to "employ modern and efficient machinery," to "adopt all necessary measures to protect the flora, fauna, and other natural resources," and to "avoid contamination of waters, air, and lands." 5. Indigenous peoples not only suffered the environmental destruction unleashed by Texaco, they also claim to have suffered directly at the hands of Texaco employees themselves. According to firsthand witness testimony gathered by the plaintiffs in the case, some Texaco employees heaped abuse on indigenous individuals and subjected indigenous women to sexual harassment. Among the stories that are now tragically part of the oral traditions of the region's indigenous peoples are: the girl who accepted an offer of a "thrill ride" in a Texaco helicopter, only to be taken to a remote site and raped by oil workers; the foreign oil workers who told a group of upset indigenous individuals not to worry about the pollution because petroleum was natural and healthy—"like milk"; and many more. As their traditional ability to live off the rainforest declined—as the fish died, the animals fled due to the seismic testing and excessive hunting by oil workers, and the forest itself was chopped down to clear land for roads, platforms, or provide materials for the same—indigenous women were forced to prostitute themselves to provide for their children, and indigenous men were forced to enter oil company service, taking the most dangerous jobs for the lowest pay. 20 kilometers down the Aguarico and established the new settlement of Dureno. But in the mid-1980s—after almost 20 years of experience watching the destructive impact of pollution and roads on indigenous culture and livelihood—Texaco decided to follow the Cofanes into the jungle and began developing the Guanta oil field, just kilometers from Dureno. Within a few years, Dureno was surrounded on all sides by wells, pipelines, and massive oil separation stations, together dumping millions of gallons of produced water directly into the surface water and leaching toxic drilling wastes through dozens of unlined earthen pits. The Cofanes found themselves faced with the same question: abandon their new village and flee further outside their traditional homeland, or stay put and continue to suffer the effects of ever more contamination and abuse by Texaco. This time the community fractured, as some Cofanes chose to continue fleeing down the Aguarico, while others chose to stay, convinced that no matter how many times they relocated the company would always be one step behind. In only a few years, the Cofanes went from a prosperous, contented existence to being impoverished, displaced, and divided. Other indigenous peoples in Texaco's concession area suffered similar, or worse, fates. One community, the Tetetes, known to have inhabited the region just north of Lago Agrio when Texaco arrived, has now disappeared entirely. The full story of their last years, along with the full story of their entire history, disappeared with them.
