• E4J University Module Series: Wildlife Crime

• Module 3: Criminal Justice Responses to Wildlife Trafficking

• Introduction and learning outcomes

• Key issues

  • Criminal justice actors and agencies
  • Criminalization of wildlife trafficking
  • Challenges for law enforcement
  • Investigation measures and detection methods
  • DNA
  • Prosecution and judiciary
  • References

• Exercises

• Possible class structure

• Core reading

• Advanced reading

• Student assessment

• Additional teaching tools

 

Published in September 2019 

Regional Perspective: Eastern and Southern Africa - added in April 2020

 

 

   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).

 

 

 

 

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).

 

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).

 

Regional perspective: Eastern and Southern Africa   Example: National Environmental Management of South Africa The National Environmental Management Biodiversity Act of 2004 of South Africa lists offences as “restricted activities” and uses this term instead of repeating all offences throughout the text: National Environmental Management: Biodiversity Act of 2004, s 1(1) […] “restricted activity” — (a) in relation to a specimen of a listed threatened or protected species, means — (i) hunting, catching, capturing or killing any living specimen of a listed threatened or protected species by any means, method or device whatsoever, including searching, pursuing, driving, lying in wait, luring, alluring, discharging a missile or injuring with intent to hunt, catch, capture or kill any such specimen; (ii) gathering, collecting or plucking any specimen of a listed threatened or protected species; (iii) picking parts of, or cutting, chopping off, uprooting, damaging or destroying, any specimen of a listed threatened or protected species; (iv) importing into the Republic, including introducing from the sea, any specimen of a listed threatened or protected species; (v) exporting from the Republic, including re-exporting from the Republic, any specimen of a listed threatened or protected species; (vi) having in possession or exercising physical control over any specimen of a listed threatened or protected species; (vii) growing, breeding or in any other way propagating any specimen of a listed threatened or protected species, or causing it to multiply; (viii) conveying, moving or otherwise translocating any specimen of a listed threatened or protected species; (ix) selling or otherwise trading in, buying, receiving, giving, donating or accepting as a gift, or in any way acquiring or disposing of any specimen of a listed threatened or protected species; or (x) any other prescribed activity which involves a specimen of a listed threatened or protected species; […] UNODC SHERLOC Portal, ‘National Environmental Management : Biodiversity Act 10 of 2004’

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.

 

Regional perspective: Eastern and Southern Africa   Example: South African Trio incarcerated for Rhino Poaching Three individuals were found guilty of more than 50 counts of rhino poaching between 2013 and 2016 by the Grahamstown High Court in South Africa. The members of the group, also known as the Ndlovu Trio, will each serve a minimum of 25 years in prison. After an investigation, the trio was convicted in early 2019. During the arrests, several items were recovered, including a freshly harvested rhino horn, a darting rifle, saws and knives and two rental vehicles. UNODC SHERLOC Portal, ‘The State vs Ndlovu’

 

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.

 

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).

 

 

Regional perspective: Eastern and Southern Africa   Examples of other national legislation on wildlife crime from Eastern and Southern Africa The Wildlife Conservation and National Parks Act, 1992 of Botswana Malawi National Parks and Wildlife Act 1992 Protection, Conservation and Sustainable Use of Biological Diversity of Mozambique National Environmental Management Protected Areas Act, 2003 and the National Environmental Management: Biodiversity Act, Act 10 of 2004 of South Africa The Protection, Conservation and Sustainable Use of Biological Diversity andt heWildlife Conservation Act, 2009 of Tanzania The Uganda Wildlife Act Cap 200 of 2000 and the Uganda National Forest and Tree Planting Act,  Act 8. 2003 The Zambia Wildlife Act The Parks and Wildlife Act 22/2001 of Zimbabwe For more national frameworks visit the SHERLOC portal.

 

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