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   This module is a resource for lecturers   

 

Criminalization of wildlife trafficking

 

Definitions

Wildlife trafficking involves the illegal trade, smuggling, poaching, capture, or collection of endangered species, protected wildlife (including animals or plants that are subject to harvest quotas and regulated by permits), derivatives, or products thereof. There is, however, no universally accepted definition of the term and different jurisdictions and organizations employ different terminology (Biegus & Bueger, 2017; UNODC, 2016; Wellsmith, 2011).

International organizations, such as UNODC and INTERPOL use the term 'wildlife and forest crime' to 'refer to the taking, trading (supplying, selling or trafficking), importing, exporting, processing, possessing, obtaining and consumption of wild fauna and flora, including timber and other forest products, in contravention of national or international law. Broadly speaking, wildlife and forest crime is the illegal exploitation of the world's wild flora and fauna' (UNODC, 2019)..

The ICCWC further explains: 'This may start with the illicit exploitation of natural resources, such as the poaching of an elephant, uprooting of a rare orchid, unauthorized logging of trees, or unlicensed netting of sturgeons. It may also include subsequent acts, such as the processing of wildlife into products, their transportation, offer for sale, sale, possession, etc. It also includes the concealment and laundering of the financial benefits made out of these crimes. Some of these crimes will take place solely in the country of origin, whilst others will also occur in the country of destination, where live fauna or flora specimens, or their parts and derivatives, are finally consumed' (CITES Secretariat, [undated]).

 

Criminalization

Laws and regulations on wildlife trafficking vary from country to country. Depending on the jurisdiction, violations of laws relating to the environment, forests, wildlife, fisheries, endangered species, or protected areas may give rise to administrative, civil or criminal liability (UNODC, 2012). For more on this, refer to Module 2 of the E4J University Module Series on Wildlife, Forest and Fisheries Crime.

Criminalization is the harshest form of regulation and involves the most invasive forms of punishment and proceedings. It should thus be used as a last resort when other interventions and sanctions do not or would not have the desired effect. Criminalization, criminal procedure, and punishment must occur in a proportionate and reasonable manner and should be reserved for serious violations of wildlife, forest, and fisheries laws (see further, Wyatt, 2013; Nurse, 2015; WWF, 2015).

 

Sources of criminal offences

Offences relating to wildlife trafficking, their elements and penalties vary greatly between jurisdictions (UNODC, 2012; see also, Wyatt, 2013). International law does not provide any framework for the content and design of such offences.

In most jurisdictions, offences relating to wildlife trafficking are set out in specific statutes relating to environmental law, wildlife, forests, endangered species, protected areas, conservation, or biodiversity. It is less common to find such offences in general criminal laws or penal codes. Nevertheless, general rules relating to criminal responsibility, criminal procedure, sentencing, and punishment are relevant to wildlife trafficking offences as they determine the ways in which criminal offences are composed, criminal liability is established, and the degree to which liability extends to attempts and participation (UNODC, 2012).

Example: Statutes relating to wildlife trafficking in the United States

In the United States, the principal statutes concerning the protection of endangered species are the Endangered Species Act of 1973 and the Marine Mammal Protection Act of 1972. The Endangered Species Act prohibits the taking of listed species as well as the trade of protected wildlife. It provides both civil and criminal sanctions for violations of the Act. The Act defines various prohibited actions like the taking of endangered species, as well as possessing, selling, or transporting any unlawfully taken endangered species. Attempting to commit, soliciting another to commit, or causing to be committed any prohibited act is also an offence under the Act. The statutory penalty for any person who knowingly violates any provision of the Endangered Species Act are fines of not more than USD 50,000 or imprisonment for not more than one year.

The Lacey Act of 1900, named after congressman John F Lacey of Iowa, is the federal conservation law that prohibits trade in wildlife, fish, and plants that have been illegally possessed, transported, or sold. In addition, the Eliminate, Neutralise and Disrupt Wildlife Trafficking Act was adopted in October 2016. It requires the identification of 'focus countries' that are major source, transit or destination countries implicated in wildlife trafficking and seeks to 'dismantle illegal wildlife trade networks and the financing of those networks'.

(see further, Anderson, 1995; Lynne & Wyatt, 2016)
 

Example: Statutes relating to wildlife trafficking in Mexico

In Mexico, offences relating to wildlife trafficking are set out in both general criminal laws and specific statutes. The Federal Penal Code of Mexico contains offences such as trafficking in timber (Article 419) and trafficking in endangered fauna and flora that is protected under international law (Article 420). These offences carry a maximum penalty of imprisonment for nine years or a fine. Further offences can be found in specialized environmental laws, such as the General Law on Ecological Balance and Environmental Protection, the General Wildlife Law, the General Law on Sustainable Forrest Development, the General Law on Sustainable Fishing and Aquaculture, and the Customs Law.

 

Example: Statutes relating to wildlife trafficking in the Democratic Republic of Congo

Offences pertaining to wildlife trafficking are spread over multiple statutes in the Democratic Republic (DR) of the Congo. Article 8 of the Law of 22 August 1969 on the Conservation of Nature, for instance, makes it an offence, punishable by imprisonment for up to one year or a fine, to poach (i.e. unlawfully kill) certain protected animal species. Article 41 of the Decree of 28 March 2000 regulating the International Trade in Species of Fauna and Flora that are threatened by Extinction makes it offence, punishable by a fine, to import or export protected species. Articles 86 and 87 of Law No 82 of 28 May 1982 regulating hunting set out offences, punishable by imprisonment for up to five years or a fine, to possess a protected animal or any part thereof and to engage in hunting without a permit.

 

Example: Statutes relating to wildlife trafficking in Mozambique

Trafficking in protected flora or fauna are criminalized under national law in Mozambique in Article 41 of Law No 10 of 1999 and Article 54 of Law No 5 of 2017 . Both offences are only punishable by a fine. The offences are aggravated, and the penalties raised, if the offence is committed at night, on a Sunday, or a public holiday.

 

Types of offences

Offences relating to wildlife trafficking cover a wide range of conduct and circumstances. Some offences concern protected species. Others relate to protected areas. Offences may relate to different stages and activities of wildlife trafficking, such as poaching, processing, exporting, importing, selling, et cetera. Some offences only apply to conduct that occurs inside the jurisdictions, others relate to cross-border activities (UNODC, 2012).

While specific offences vary greatly between jurisdictions, the following categories seek to capture the types of offences that are most commonly encountered in national laws. These categories can be differentiated by the conduct involved, spanning from sourcing wildlife to trade, sale, and consumption.

Poaching (illegal hunting)

Offences in this category refer to the unlawful taking of wild animals (Biegus & Büger, 2017; UNODC, 2012; Wyatt, 2013). Poaching may involve the killing or trapping of a protected species, hunting in a protected area, or hunting without a hunting licence. In some jurisdictions, offences in this category also include hunting above allocated quotas or the use of prohibited hunting methods or instruments (UNODC, 2012; see also, UNODC, 2018).

Illegal logging and illegal harvesting

Offences in this category capture a wide range of criminal activities associated with the felling of trees and the taking of plants. This may involve logging or taking of protected species, logging in protected areas, excessive logging, logging without permits or licences, the use of fraudulent permits, obtaining logging permits illegally, non-payment of taxes and other forest fees, and damaging forest or plant ecosystems. Several countries extend the criminal offences to the illegal taking of other plants (UNODC, 2012).

Illegal processing

This category broadly refers to the activities that follow poaching, illegal hunting, illegal logging, or the illegal taking of plants. It captures, inter alia, milling of timber, slaughtering of animals, and the manufacturing of products from animals or plants that have been obtained illegally, that are protected, that were taken in protected areas, et cetera. Processing may, in some cases, involve activities that serve to disguise the origin of the animal or plant or conceal the species involved. Processing may also be illegal because it is done without a licence, or with fake or illegally obtained licences (UNODC, 2012).

Trafficking, transportation, sale, and supply

Offences in this category cover a range of commercial activities involving animal or plant products, and activities relating to their transportation (UNODC, 2012; UNODC, 2018; Wyatt, 2013). 'Trafficking', in relation to a specimen, means illegal acts by a person, whether for the benefit of themselves or another person, for purposes of introducing from the sea, dispatching, dispatching in transit, distributing, brokering, offering, keeping for offer, dealing, processing, purchasing, selling, supplying, storing or transporting (UNODC, 2018). It may also involve transportation, sale, supply, et cetera, without a licence or other required documentation.

Import and export offences

While also falling into the broader trafficking category, offences relating to export and import specifically refer to illegal activities across international borders. Offences relating to export and import of wild fauna and flora include, inter alia, export/import without authorization or without proper documentation or with fraudulent documents, the export/import of illegally obtained wildlife and forest products, the export/import of protected species, false classification and labelling of exports and imports, as well as export and imports with illegally obtained documents (UNODC, 2012). Export and import above set quotas or against export/import bans also fall into this category. Many national offences in the import/export category reflect the obligation arising from CITES to prohibit and penalize the trade in and possession of endangered species in violation of this treaty (see further, Schneider, 2012; UNODC, 2012).

Example: Hong Kong's 'CITES Ordinance'

Hong Kong's laws relating to wildlife trafficking can be found in a number of different statutes. The most important ones are the Import and Export Ordinance (Cap 60), the Prevention of Cruelty to Animals Ordinance (Cap 169), and the Protection of Endangered Species of Animals and Plants Ordinance (Cap 586, also known as the ' CITES Ordinance').

As its name suggests, the Protection of Endangered Species of Animals and Plants Ordinance implements Hong Kong's obligations under CITES. The Ordinance sets out a number of offences, including the illegal import of specimens listed in CITES Appendix I (s 5(3)), the illegal possession of specimens listed in CITES Appendix I (s 9(2)), the illegal import of specimens listed in CITES Appendices II and III (s 11(3)), the illegal possession of live wild specimens listed in CITES Appendix II (s 15(2)), and the unlawful issue of licences (s 23(5)). Dead specimens and captive bred Appendix II specimens are not caught under this legislation (ss 18(a)(i) and 21(1)(a)). Offences involving specimens listed in CITES Appendix I are punishable by a fine of HKD 5,000,000 and imprisonment for two years (on summary conviction) or by a fine of HKD 10,000,000 and imprisonment for ten years (on conviction on indictment). For offences involving specimens listed in CITES Appendices II and III, the statutory penalty is a fine of HKD 500,000 and imprisonment for one year (on summary conviction) or a fine of HKD 1,000,000 and imprisonment for seven years (on conviction on indictment).

The Ordinance further furnishes the agencies in charge of wildlife crime enforcement with relevant powers, such as the power to require production of documents (s 28), the power to inspect places or premises (s 31), the power of search and detention of persons (s 32), and the power of seizure (s 34).

(ADMCF, 2018)
 

Illegal acquisition, possession, and consumption

Offences in this last category are broadly aimed at criminalizing the demand that is the main driver of wildlife trafficking. Not many jurisdictions have legislated offences of this sort as many legislatures are hesitant to criminalize and punish consumers (regardless of whether they wittingly or unwittingly acquired a protected species or other animal or plant contraband). Although Article VIII paragraph (1) of CITES makes express reference to penalizing the possession of CITES-protected species that are traded illegally, very few jurisdictions make it an offence, for instance, to purchase or possess animals, plants, or products that come from an illegal source or involve a protected species (UNODC, 2012; EIA, 2016; UNODC, 2018).

Example: Penal Code of China

Article 341 of the Criminal Law of the People's Republic of China criminalizes the illegal purchase, transport or sell of rare and endangered wild species. The offence has a maximum of five years of imprisonment and a fine. In serious cases, the maximum penalty is raised to ten years of imprisonment. According to the Supreme People's Court, through the Judicial Interpretation of the Supreme People's Court on Several issues concerning the specific application of the law in trials of criminal cases damaging wildlife resources, effective 11 December 2000, "rare and endangered wild species" are understood as the species, including captive-bred species, listed in the Directory of Wildlife Under Key State Protection and the species listed in Appendix I and II of CITES. It was also ruled, however, that cases involving captive-bred species are less serious.

The categories and offences listed above are not exhaustive and some jurisdictions set out additional offences for particular activities or in relation to particular species, methods, results, or locations involved.

Differences between the offences found in national laws not only relate to the types of conduct, species, methods, et cetera, that are criminalized, but also to the mental element ( mens rea) required for these offences. In general, most jurisdictions criminalize the intentional commission of these offences and reserve the highest penalties for cases in which the accused acted with purpose (direct intention) and with positive knowledge that, for instance, an endangered species was involved. Apart from that, there is very little unanimity between jurisdictions in the criminalization of other, less onerous states of minds such as recklessness and negligence.

There are also significant variations between jurisdictions regarding extensions of criminal liability for these offences in relation to attempts, participation, incitement and the like (Nurse, 2015; UNODC, 2018; UNODC, 2012). Some jurisdictions have also enacted specific defences that only apply in relation to wildlife and forest offences (UNODC, 2018).

 

Penalties and sentencing

As with the offences themselves, the types and severity of statutory penalties for wildlife trafficking differ considerably between different jurisdictions. While some countries limit penalties to small fines, others provide for long terms of imprisonment. Although quite exceptional - and questionable in light of international human rights obligations - some jurisdictions use penalties involving corporal or capital punishment for serious offences pertaining to wildlife trafficking (UNODC, 2012; see also, de Klemm, 1993; Nurse, 2015; WWF, 2015).

Within any one jurisdiction, statutory penalties for wildlife and forest offences vary depending on the type of conduct, the level of harm caused or damage done, the methods used, and type of species involved. Higher penalties generally apply to offences that involve more serious consequences or dangers. In some places, higher penalties are assigned to offences involving particularly endangered (or particularly charismatic) species, such as in Kenya since the Wildlife Conservation and Management Act, 2013 as amended by the Statute Law (Miscellaneous Amendments) Act, 2018 , and in Tanzania with the Wildlife Management Authority Act, 2013 (UNODC, 2012).

While there is a considerable range of available sentences, it is another question what sentences are actually imposed on persons convicted for wildlife trafficking related offences. Statutory provisions usually provide a range of penalties within which sentences may be set. National penalties and sentencing laws or codes of criminal procedure usually spell out a range of aggravating and mitigating factors that determine the sentence imposed in individual cases. The respective factors and their use vary between jurisdictions and legal systems and traditions (UNODC, 2018).

Aggravating factors in relation to wildlife trafficking may include, for instance:

  • where the offence caused a particularly serious result,
  • where the offence involved particular cruelty to an animal,
  • the number or quantity of specimens or items involved,
  • whether any animal involved in the offence was pregnant, gravid, incubating or caring for dependent offspring at the time of the offence,
  • whether the offender had previously committed any wildlife offence,
  • the size of any financial or other material benefit, or
  • the leadership or managerial role of the offender in the organized criminal group.

Mitigating factors may include, for instance:

  • where the offender had a lower or minor role in the offending,
  • where the offender had no prior criminal record,
  • where the offender showed remorse for the offending, or
  • where the offender voluntarily cooperated with law enforcement officials to investigate and prosecute other wildlife crime. (UNODC, 2018)

Research into sentencing for wildlife trafficking related offences tends to show that most defendants are punished with (small) fines. Sometimes these fines are lower than the value of the commodity the defendant trafficked, sold, or acquired. Imprisonment generally appears to be exception in wildlife trafficking cases and several sources have been critical that in this area of the law 'the punishment does not adequately fit the crime' (Nurse, 201, pp. 150-151; see also Wyatt, 2013; Alacs & Georges, 2008; Runhovde, 2016). Discrepancies between penalties and sentences for wildlife and forest offences in different jurisdictions can also create obstacles to international cooperation.

Example: the 'Ivory Queen' of Tanzania

In February 2019, a Tanzanian court delivered a landmark ruling when a Chinese businesswoman nicknamed the 'Ivory Queen' was sentenced to 15 years imprisonment for smuggling hundreds of elephant tusks. She was accused of running one of Africa's biggest ivory trafficking rings. Having moved to Tanzania in the 1970s, she was secretary-general of the Tanzania China-Africa Business Council and owned a popular Chinese restaurant in Dar es Salaam. She used her knowledge of Tanzanian culture, her Swahili language skills, and her ties to the Chinese and Tanzanian establishment to run a sophisticated organized criminal group.

(CNN, 19 February 2019)
 

Related offences

In addition to offences specifically associated with wildlife trafficking and other forms of wildlife crime, other, more general offences under environmental laws, animal protection laws, or under the general criminal law can play an important role in the suppression of this crime.

Animal cruelty

Animal cruelty offences can serve to punish the way in which live animals are captured, transported, traded, poached, or slaughtered. They have been particularly important in cases in which live birds were placed in plastic bottles or where the legs and heads of turtles and tortoises were taped to stop them moving.

Example: Glass eels

On 18 April 2018, a criminal court in Amsterdam, the Netherlands, sentenced a Chinese national in absentia to six months imprisonment for the unauthorized exporting and abuse of an endangered species, namely 72 kg of live glass eels.

Six suitcases filled with glass eels were found by customs officers at Amsterdam's Schiphol Airport a year earlier on 17 April 2017. The suitcases were in transit en route from Portugal to China. Customs asked the Dutch Food and Consumer Product Safety Authority (NVWA) to take over the investigation. Officers of the NVWA subsequently discovered 36 plastic bags containing young eels, later identified through DNA analysis as the Anguilla anguilla species (European eel). The suitcases had labels attached with the names of those who checked in the suitcases, who became the main suspects in this case. The public prosecutor and the court decision explicitly stressed this to be a case of trafficking as well as animal abuse. Since the suitcases were checked without any indication that they contained live animals, they were handled as standard checked baggage. The dispatching of live glass eels in this way caused unnecessary suffering to the animals, thereby damaging their health and welfare.

( Docket Number 13/994016-17, Verdict of 18 April 2018, Rechtbank Amsterdam)

 

Fraudulent documents

Fraudulent documents are frequently produced or genuine documents altered to disguise the authenticity, illegality, quantity, volume, origin, or destination of wildlife and wildlife products. This can also involve the removal, alteration, defacing, or erasure of customs stamps or labels or of marks affixed to animals, plants and parts thereof (UNODC, 2018; UNODC, 2012). Some jurisdictions have specific offences for instances in which fraudulent documents are used in the context of wildlife trafficking. This may also include offences for obtaining or issuing fraudulent licences or obtaining licences or other permits by way of corruption (see further, UNODC, 2018). In the absence of specific offences, general offences relating to document fraud, bribery, and abuse of office can also apply in cases involving wildlife trafficking (de Klemm, 1993).

Corruption

In many places, corruption is one of the main enablers and facilitators of wildlife trafficking. This involves the whole spectrum from petty corruption of low-ranking officers to grand corruption of senior government representatives. Corruption frequently occurs in the process of applying for licences, permits, or other documents, or at border control or other inspection points where officials may be bribed to become complicit or 'turn a blind eye' to illegal activities. Corruption in the wildlife, forestry, and fisheries sectors also involves bribery of government officials or politicians for preferential treatment, extortion by officials to sign off on illegal operations, and official decisions that favour certain groups (for instance, when allocating logging or hunting concessions with the tacit understanding that the group will eventually repay the favour) (Biegus & Bueger, 2017; INTERPOL & UNEP, 2016; UNODC, 2012; see also Khooshie :a; Panjabi, 2014; UNODC, 2019).

Most of these activities, such as active and passive bribery or training in influence, are criminalized under national laws; some jurisdictions have specific offences for corruption and bribery in the wildlife, forestry, and fisheries sectors. In some jurisdictions, this also extends to corruption in the private sector. However, in many jurisdictions, such offences are only rarely enforced. Even if cases involving corruption are prosecuted and result in convictions, sentences are often be quite low relative to the damage caused.

Money-laundering and financial crime

Wildlife trafficking is often driven by greed and the desire to obtain financial or other material benefits. For this reason, a further important tool to criminalize and fight wildlife trafficking are offences relating to the laundering of proceeds of such crime and to the financing of wildlife trafficking (IFAW, 2013; Khooshie Lal Panjabi, 2014; UNODC, 2018; UNODC, 2012). Today, nearly every jurisdiction in the world has offences relating to money-laundering and to enable the confiscation and seizure of proceeds of crime. In some jurisdictions, special offences for money-laundering and financial crime in the wildlife, forestry, and fisheries sector have been enacted. For further information on money-laundering, please see Module 4 of the E4J University Module Series on Organized Crime.

Tax offences

Tax-related offences may also be linked to wildlife trafficking. For example, high-value species may be falsely declared to save Value Added Tax. Tax evasion and the non-payment of fees are also often linked to money-laundering and corruption (UNODC, 2012).

Threats and violence

Wildlife traffickers sometimes use violence, threats, or even deadly force to facilitate their actions (Kleinschmitt et al., 2016; UNEP & INTERPOL, 2012). In such cases, criminal offences such as homicide, assault, coercion, or threatening behaviour are applicable.

Organized crime offences

Many instances of wildlife trafficking are committed by or associated with organized criminal groups. The prosecution of members of such groups and of the directors and 'masterminds' has historically been quite difficult and few jurisdictions had offences for persons who are not themselves physically involved (and caught) in the commission of the crime. Following the entry into force of the United Nations Convention against Transnational Organized Crime, more and more jurisdictions have enacted specific offences criminalizing the participation in an organized criminal group as stipulated by Article 5 of the Convention. Such offences can be important tools to target offenders who lead, direct, finance or help in other capacities criminal organizations involved in wildlife trafficking (UNODC, 2012; see also, UNODC, 2018; Slobodian, 2014; WWF, 2015; Module 2 of the E4J University Module Series on Organized Crime).

Example: Offences relating to endangered species in the United Kingdom

The United Kingdom is a Party to CITES, to the UN Convention against Transnational Organized Crime, and to the UN Convention against Corruption, and, at the time of writing (July 2019), is a Member of the European Union. Relevant offences concerning protected species are included in the Control of Trade in Endangered Species Regulations 2018 and the Customs and Excise Management Act 1979. Together, these two instruments also create offences and proscribe sanctions for offences listed in Article 16 of Council Regulation (EC) No. 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein .

Schedule 1 of the Control of Trade in Endangered Species Regulations 2018 sets out 'offences and penalties' for purchasing, offering to purchase, acquiring for commercial purposes, using for commercial gain, displaying to the public for commercial purposes, selling, keeping for sale, offering for sale or the transporting for sale of illegal animal or plant products. The penalty for these offences is a maximum term of imprisonment of six months, or a fine, or both on summary conviction, or imprisonment for a maximum term of five years, or a fine, or both on conviction.

Section 50 of Customs and Excise Management Act 1979 sets out offences and penalties for 'improper importation of goods' into the United Kingdom, which includes, inter alia, importation of prohibited goods, evasion of customs duties, and concealment of imports in a container holding goods of a different description. The Animal Welfare Act 2006 sets out several offences; these include unnecessary suffering (s 4), mutilation (s 5), docking of dogs' tails (s 6), administration of poisons (s 7), and fighting (s 8). Furthermore, the act sets out different enforcement powers (s. 22-29), prosecution powers (ss 30-31) as well as post-conviction powers (ss 32-45). Compared to the penalties set out in the Control of Trade in Endangered Species Regulations 2018 , the statutory penalties for acts against animal welfare are much lower. Generally, a person guilty of an offence under ss 4, 5, 6, 7, or 8 is liable to imprisonment for a term not exceeding 51 weeks or a fine (s 32(1)).

(see further, TRAFFIC, 2005; Schneider, 2012; Wyatt, 2016).
 

Example: Wildlife Conservation and Management Act of Kenya

Kenya introduced a new Wildlife Conservation and Management Act in 2013. Besides a range of financial provisions, wildlife regulation mechanisms, rules on conservation, protection and management, licencing and regulation, the Act also sets out a wide range of offences. This includes offences relating to management plans (art 88), pollution (art 89), conservation orders and easements (art 90), licenses and permits (art 91), endangered and threatened species (art 92), invasive species (art 93), flying aircraft in wildlife conservation areas (art 94), trophies and trophy dealing (art 95), sport hunting (art 96), subsistence hunting (art 97), hunting for bush-meat trade (art 98), and import and export of wildlife species (art 99). The Act also contains specific provisions for offences committed by corporations (art 103) and for the commission of offences in the course of duty (art 106).

Penalties for the offences established by the Wildlife Conservation and Management Act can be as high as life imprisonment, and/or fines of up to USD 198,000. Despite these high penalties, in the first two years of operation, only about 6 percent of convictions under the Act involved prison sentences.

(EIA, 2016; Wildlife Direct, 2015)
 
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