By Trócaire and the Xinka Parliament

On 27 April 2013, peaceful protesters gathered outside the Escobal Mine in Guatemala to defend their territories when the mine’s security guards opened fire. Footage of the incident shows them shooting directly at the retreating demonstrators, using live ammunition. As Head of Security Alberto Rotondo put it: “I ran them out with bullets”.

The protesters were members of the Xinka Indigenous People, a small ethnic group long made invisible by the Guatemalan state. Having organised as ancestral authority, the ‘Xinka Parliament’, they declared a state of permanent peaceful resistance against an arbitrarily imposed and illegally licensed mega-mine that threatened their health, livelihoods, culture and environment.

Though small in numbers, the Xinkas have remained resolute in the defence of their rights and territories. While their struggle would achieve a level of justice through the groundbreaking claim García v Tahoe Resources Limited, it would be incomplete, take years, and come at a huge human cost. Their struggle exemplifies the obstacles to accessing justice for victims of transnational corporate human rights abuses and highlights the importance of a progressive UN Binding Treaty.

The missing third pillar

The United Nations Guiding Principles (UNGPs) are constructed on three ‘pillars’. While criticism of the UNGPs often focuses on the first two pillars’ non-binding nature, it is increasingly clear that the third on victims’ rights to effective remedy is all-but absent.

Research reveals persistent practical and legal barriers to remedy, including financial costs, lack of information from companies, and evidentiary burdens. A landmark 2016 study identified others, including jurisdiction and applicable law, restricted time limits, complex corporate structures involving webs of subsidiaries, and procedural defences used to delay or divert justice.

These include forum non conveniens – a common law doctrine that exhorts a court with jurisdiction to decline a case if another forum is considered more convenient - but for whom? The focus should be whether the victim can obtain effective justice where the abuse occurred, considering issues like endemic corruption, co-optation of judicial systems and institutional bias. In practice, however, courts frequently give equal status to procedural matters to refuse jurisdiction.

Justice against the odds

In their pursuit of justice, the Xinkas would face and overcome many obstacles.

Following the 2013 attack, and with the support of Canadian lawyers, a civil claim alleging battery and negligence against the mine’s parent company Tahoe Resources (now Pan American Silver) was filed in British Columbia (BC). All seven plaintiffs suffered serious injuries during the attack, including 18-year-old Luis Fernando Garcia who was shot in the face, head and back, requiring years of reconstructive surgery and recuperation.

Tahoe immediately sought to dismiss the claim citing forum non conveniens while alleging that community resistance was driven by “efforts at extortion”. They succeeded initially: BC Supreme Court refused jurisdiction, prioritising language and applicable law over the plaintiffs’ preferences and deficiencies in Guatemala’s legal system.

In justifying its decision, the court highlighted Alberto Rotondo’s arrest. But by then he had been released on house arrest, despite being a foreign national charged with grave crimes. Shortly afterwards Rotondo absconded, denying his victims justice and demonstrating how private security can “shoot to kill” without accountability, according to lawyers.

In the civil case, the plaintiffs successfully appealed, culminating in a historic public apology and admission of human rights abuses by the parent company, opening possibilities for holding transnationals accountable for the acts of their subsidiaries.

This outcome cannot disguise the challenges victims faced. Despite recordings of security guards firing at peaceful protesters and of the security chief boasting about it, no prosecution followed, and the civil claim took years, faced significant barriers and yielded limited results.

Nor did it resolve bigger issues. Instead, the mine was arbitrarily imposed without free, prior and informed consent, under conditions of systematic violence and a state of siege.  These measures were facilitated by racialised stigmatisation, criminalisation and reprisals that saw over 200 people prosecuted and at least 15 killed – including 16-year-old Topacio Reynoso, shot dead in front of her father, who was also injured in the attack.

It took another lengthy legal process to secure an order by Guatemala’s Constitutional Court suspending mining operations and mandating a consultation. In a public statement in May 2025, the Xinka community denied its consent to the mine and called on Pan American Silver and the state to respect the consultation result. The statement cited the community’s findings – corroborated by the Health Ministry – of heavy metals in local waters linked to biodiversity loss and elevated cancer rates.

The role of a binding treaty

The Xinka case is both a study in obtaining justice and a cautionary tale about the obstacles victims face. An effective UN Binding Treaty must tackle these barriers and facilitate access to justice for transnational corporate abuses.

The current text under negotiation in Geneva contains elements that could bring that objective closer, even if some would benefit from further strengthening. Possible measures that could help victims in such cases include proposals to:

• Reverse the burden of proof, guarantee access to information, reduce financial burdens and ensure collective redress (Article 7);
• Provide for joint and several liability across global value chains, and for criminal liability for natural and legal persons (Article 8);
• Adopt effective measures to protect victims, including precautionary measures and protections against reprisals (Articles 4 and 5);
• Expand jurisdictional grounds and increase victims’ options, including by prohibiting forum non conveniens (Article 9);
• Ensure flexible and gender-responsive time limits (Article 10);
• Contain strong provisions to ensure respect for the rights of indigenous peoples (Article 6).

As the Binding Treaty process enters a crucial phase, broad support among states for these measures is essential for guaranteeing that access to justice goes beyond words on a page.

Trócaire is a social justice organisation that works in partnership with local organisations and communities, and with people in Ireland, to tackle the root causes of poverty, injustice and violence. Trócaire is the overseas development agency of the Catholic Church in Ireland and was founded in 1973.

The Xinka Parliament is an indigenous authority that supports the sustainable economic and social development of the Xinka people in Guatemala. For 15 years the Xinka people have peacefully resisted the imposition of the Escobal Mine that threatens their territories, cultural heritage, health and livelihoods.