• 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   

 

Investigation measures and detection methods

 

The main measures traditionally employed by law enforcement agencies in relation to the investigation of offences include search and seizure of property, arrest and questioning, and covert operations (such as surveillance, controlled delivery, and undercover activities). In some instances, special investigative measures have been created for the investigation of wildlife trafficking. Depending on where wildlife and forest offences are legislated in domestic law, and depending on the authorities in charge, investigation measures and detection methods may be found in different types of statutes. This may include, for instance, general statutes concerning criminal procedure or police powers, customs laws, or specific statutes relating to wildlife, forest, or other environmental matters (UNODC, 2012).

Typically, such legislation sets out the scope and the requirements for specific methods. This usually also involves a range of procedural checks and balances that are implicit in the granting of a particular power. It is rare that law enforcement agencies are given a power that does not have some express limitations (UNODC, 2012). Authorities charged with law enforcement must make sure that they strictly act within these limitations, otherwise the collected evidence may be inadmissible. Generally, investigative measures have to be permitted by law, and the principle of proportionality has to be observed. In most jurisdictions, investigation measures can only be employed when there is reasonable cause to examine whether a criminal offence has been committed (UNODC, 2012).

The following section highlights some of the most common and most important methods used in the investigation of wildlife and forest crimes.

 

Intelligence gathering

Law enforcement is increasingly led by intelligence. This involves, inter alia, the collation, analysis and dissemination of information, and provides a systematic approach to critical thinking, which, in turn, can assist in the prevention and suppression of criminal activities. Intelligence-led investigations are more effective than speculative or reactive methods (on this topic, also see Module 8 of the E4J University Module Series on Organized Crime). In the field of wildlife trafficking, however, intelligence is often missing or non-existent which restricts the abilities of agencies to coordinate and implement well-informed responses to individual cases or general initiatives (UNODC, 2012; World Bank, 2018).

To be of maximum value, intelligence gathering activities should focus simultaneously on strategic and tactical levels. Strategic intelligence is intelligence that enables accurate assessments of the levels and patterns of wildlife trafficking at local, national, and international levels. Strategic intelligence facilitates law reform, international cooperation, and the development of prevention strategies, education and awareness campaigns. Tactical intelligence is intelligence about the activities of specific individuals or groups. It can help identify criminals, give advance information about their activities and help plan proactive, disruptive, and further intelligence-led investigations. In the context of wildlife trafficking, it can involve issues such as methods of sourcing wildlife, timber, and plants, methods of transportation, methods of document fraud, means of communication, financial transactions, motives, markets, prices, et cetera.

While it is important to gather information from a wide range of sources, it is likely that the information will vary in quality and sources will vary in reliability and motivation. It is thus essential that information is subjected to some form of analysis and grading before it is disseminated or used. Intelligence analysis software can be very helpful in this context (World Bank, 2018). Once gathered and analysed, intelligence must be transmitted to the individuals and departments that are able to use it. A vital factor in the expeditious and effective exchange of intelligence is the speed at which material can be transmitted to relevant agencies or investigators who may be in a position to respond to it (UNODC, 2012).

Traditionally, the gathering and analysis of intelligence is assigned to law enforcement officials. However, in cases of wildlife trafficking, NGOs are often (and increasingly) engaged in the collection of evidence (see, for example, Nurse, 2013). This can create challenges in relation to chain of custody for evidence, for example.

 

 

 

Regional perspective: Eastern and Southern Africa   Example: LAGA & EAGLE Network – Wildlife Enforcement The Last Great Ape Organization Cameroon (LAGA) considers itself the first Wildlife Law Enforcement NGO in Africa. LAGA collaborates with governments to fight the commercial poaching and illicit trade of protected species. It employs investigators, informers and undercover agents to gather intelligence on dealers and traffickers. LAGA started its operations in Cameroon, however, the EAGLE (Eco Activists for Governance and Law Enforcement) Network extends the LAGA model to other countries of West and Central Africa, among others, Uganda. In 2018, the EAGLE Network reported the arrests of 181 significant wildlife traffickers, of which 88% remained behind bars while on trial. (Laga, 2019; EAGLE Network, 2019)

 

Financial investigations

Financial investigation plays a crucial role in the successful investigation of wildlife trafficking. The financial aspects of the crime present themselves in at least two distinct ways:

(1) Wildlife trafficking is frequently about money. In addition to the initial investment to create the infrastructure, the ongoing management of the proceeds of the crime and the laundering and movement of the profits are essential parts of wildlife trafficking.

(2) Wildlife trafficking, especially if conducted continuously, can become a lifestyle crime. Lifestyle pursuits such as travel, expenditure on luxury items like cars and jewellery, and leisure activities, frequenting restaurants and casinos, all require means and methods of purchase.

For this reason, the investigation of financial transactions and the analysis of the results often provide important information and can provide evidence that may be used in prosecutions. For example, an investigation of the purchase of travel tickets may reveal details of travel arrangements, and analysis of credit card expenditure can reveal airlines, hotels, restaurants or other venues regularly used by perpetrators. It is possible to coordinate the arrest phase with financial sequestration procedures in order to arrive at the optimal situation of synchronized arrest of offenders and confiscation of their assets (UNODC, 2012; World Bank, 2018). (For more on this topic, and the different methods used for financial analysis, please see Module 8 of the E4J University Module Series on Organized Crime.)

As it is the case with financial investigation, goods related to wildlife trafficking can lead to further investigations. For instance, if weapons used for poaching are confiscated, it is possible to use information gleaned from the seizure to start the investigation for wildlife trafficking. Illegal logging can be detected by following chainsaws and trucks, which are used for illegal deforestation.

 

Forfeiture, seizure, confiscation

Seizure is a provisional measure which results either in confiscation, in forfeiture, or in the return of the goods to their owner depending on the decision on the merits of a case. To seize an animal, animal part, or plant suspected of having been trafficked, it generally suffices to demonstrate a reasonable belief that the seized item is contraband (de Klemm, 1993).

A particular challenge in the context of wildlife trafficking is the seizure of live specimens, which need to be properly kept and cared for. Many border control points, Customs agencies, and other authorities have neither the facilities nor the expertise to look after such specimens. For this reason, they often have to rely on private entities, such as zoos, to take of the seized animals. Similar challenges arise if seized animals need to be returned to their place of origin. (For more information on the topic of confiscation, please see Module 10 of the E4J University Module Series on Organized Crime.)

 

Patrols and checkpoints

Physical patrols and checkpoints not only play an important role for the prevention of illegal activities in the wildlife and forestry sectors (see, for example, Jenks et al, 2012), they are also essential for the detection of wildlife trafficking. Such measures mean that officials and local actors may be at or closer to the scene when a crime is attempted or committed, it increases the likelihood that crimes are detected and potentially stopped, that crime scenes are secured, and perpetrators apprehended (Haas & Ferreira, 2018; Sundari Akella & Allan, 2012).

Forests and wildlife habitats are often remote, large, and inaccessible areas that are difficult, if not impossible, to patrol regularly and comprehensively (Schneider, 2012; UNODC, 2012). Forestry officials, game wards, park rangers, police, and other law enforcement officials can usually only patrol small areas and, as a result, rarely see wildlife trafficking in progress or are the first to observe evidence of criminal activity in these areas. Risk management and systematic patrols with routes set out to optimize coverage of relevant areas are basic methods to improve intelligence gathering and detection (UNODC, 2012; Haas & Ferreira, 2018). In addition, checkpoints along main roads, rivers, trade routes and interchanges, at ports, airports, and key entry points to national parks and other protected areas can also assist in detecting and preventing wildlife trafficking. Officials on patrol or stationed at relevant checkpoints need to be equipped with powers to stop suspects and should be able to demand that persons suspected of illegal activity produce required licences and permits.

Technical support can be used to optimize patrols and controls at checkpoints, especially in high risk poaching areas (Ferreguetti et al, 2018; Haas & Ferreira, 2018; Shaffer & Bishop, 2016). If used appropriately and without disruption to local wildlife, drones can be a further tool to monitor areas of protected wildlife habitat, especially in locations that are otherwise difficult to access (World Bank, 2018).

 

 

Border control/customs

Border control and other measures employed by customs authorities are vital in the detection and enforcement of wildlife trafficking. Border crossings and ports often constitute important points for interventions by customs and other law enforcement officers (UNODC, 2012). The role of Customs is highly dependent on whether officers have investigative powers or not. Either Customs officers themselves can investigate instances of wildlife trafficking detected at the border independently or they have to refer suspicious cases to other authorities (Polner, 2015).

International cooperation is of particular importance at the border, including land borders, airports, and seaports. One important initiative to foster collaboration between border control and Customs agencies across borders is the UNODC-WCO Container Control Programme, which 'counters wildlife trafficking by strengthening national law enforcement and international cooperation' (UNODC, 2018a). The Programme brings together relevant officials from multiple jurisdictions and provides them with joint training on profiling, targeting, and other operational techniques. Specialized training packages focusing on wildlife, forest and fisheries crimes are a vital part of this programme (Polner, 2015; UNODC, 2018a).

 

Use of force

In some cases, enforcement agencies rely on coercive powers to demand compliance with relevant wildlife and forestry laws. For meaningful enforcement of the law, criminal justice actors investigating wildlife and forest offences, and other agencies, need to be equipped with the powers that enable them to conduct searches, interview witnesses and suspects, enter premises, seize assets and make arrests (UNODC, 2012). As a last resort, force may be used to carry out procedural measures, if this is reasonable and appropriate in the circumstances.

Some governments, often with public support, have made express statements that they are engaged in fighting a 'war on poaching', which has sometimes led to the militarization of anti-poaching units and equipping them with heavy weapons. Some jurisdictions have adopted a 'shoot to kill' policy if enforcement officials encounter active poachers (Mogomotsi & Madigele, 2017; see also, Hübschle & Faull, 2017). Such policies are controversial. Their impact on the level and patterns of illegal activity is undetermined, and such polices have sometimes had the effect that poachers acquire small arms and other weapons and engage in violent confrontations with officials, leading to injuries and loss of life.

 

Regional perspective: Eastern and Southern Africa   Example: Green violence and militarization at Kruger National Park Green militarization, the deployment of military (or military-like) actors and methods in the pursuit of wildlife conservation, has been a regularly observed response of many African states to the poaching of wildlife. Militarization has long been deeply rooted in conservation, but such efforts intensified in the 1980s as a response of many African states to increasingly heavily armed poaching groups. The term green violence goes beyond green militarization and includes material and non-material aspects, such as social and linguistic violence. Both terms embody the meshing of conservation and militarization in many African national parks. This manifestation has resulted in controversial shoot-to-kill policies in some countries, in which authorized rangers shoot rather than arrest suspected poachers. Kruger National Park is part of the Great Limpopo Transfrontier Park (GLTP), a “peace park” between South Africa, Mozambique and Zimbabwe. Kruger is home to the single-largest rhino population worldwide and has long been a hotspot of commercial rhino poaching. As a response to the poaching crisis, the park has heavily invested in the militarization of its conservation personnel. The spatial qualities of the park- it is expansive, densely wooded and framed by international borders - in combination with political-ecological values that consider the park as part of South Africa’s natural heritage, seem to facilitate the militarization efforts. The park has been witnessing a dual militarization, in which commercial poachers and rangers are locked in an intensifying cycle of upgrading their weapons and tactics to keep up with the other side. While there is uncertainty about the exact number, it is widely assumed that, in the course of recent years, hundreds of rangers and poachers have been killed in this conflict. As a result of the militarization of conservation, conservation rhetoric shifted to a more extreme discourse, a trend which may be facilitated by social media. In these new discourses, protecting the “suffering subject” (the animal) was replaced by punishing the “poaching subject” (the poacher). The endorsement of using violence against poachers (including the celebration of the death of poachers) has placed them in a “space of exception” as the enemies of “peace parks”. In this rhetoric, the poaching crisis is framed as insurgency in which South Africa is under attack from the outside. Scholars argue that green violence has to be seen in its historical and contemporary context, including racial dynamics. In case of Kruger, the poaching of rhinos and the conflict between (mostly) white public in South Africa and (mostly) black poachers from Mozambique has brought back unaddressed anxieties from the apartheid era. (Büscher & Ramutsindela, 2016; Lunstrum, 2014)

 

Covert investigation techniques

Covert investigation methods involve, for instance, the controlled delivery of wildlife contraband, the use of undercover operations, or the use of surveillance. The use of such techniques can be crucial if they are possible and permissible under domestic law and if their use is appropriate in a given case. The United Nations Convention against Transnational Organized Crime (UNTOC) lists a series of special investigative techniques such as controlled delivery, undercover operations and electronic and other surveillance (Article 20) and encourages State parties to make appropriate use of them. In this context, States must balance the competing interests of ensuring public safety through arrest and detention of criminals with the need to ensure the rights of individuals. Covert investigation methods can be particularly intrusive and thus require a solid legal basis and proper authorization. For this reason, most jurisdictions impose strict requirements and conditions on such operations (UNODC, 2012; Module 8 of the E4J University Module Series on Organized Crime).

Internet surveillance is a further and increasingly important tool to detect instances of wildlife trafficking. Examinations of online advertisements for fauna and flora have shown that websites are frequently used to sell or seek wildlife contraband (IFAW, 2005; Izzo, 2010; UNODC, 2012; see also, EIA, 2016; Alacs & Georges, 2008). In 2012, an automated digital surveillance system was developed to monitor reports on illegally traded wildlife and wildlife products online (Sonricker Hansen et al, 2012). The 'dark web' is another online space where contraband is traded, though surveillance of communication relating to wildlife trafficking in the dark web is only in its infancy (Harrison et al, 2016). For more information on the dark net and cybercrime in general, see the E4J University Module Series on Cybercrime.

A further technique used to uncover wildlife trafficking organized criminal groups is controlled deliveries. Controlled deliveries are 'used by law enforcement agencies to identify persons connected with criminal activities and to gather evidence against them' (INTERPOL & CITES, 2007, p. 7). They are 'used when enforcers decide to allow a shipment, known or suspected to contain illegal-origin wildlife, to continue to be transported from one country to another but strictly under "controlled" conditions' (INTERPOL & CITES, 2007, p. 7). This investigation measure can be set in motion when law enforcement officials physically detect, or otherwise become aware of, animal parts or plants of apparently illegal origin. Controlled deliveries are used to identify the participants throughout the distribution network. As with other covert investigations measures, it is essential that domestic law provides a sufficient legal basis to conduct controlled deliveries. If such a measure is not expressly permitted (or prohibited), prosecution authorities have to decide if controlled deliveries are an investigation tool that produces evidence that will be admissible in criminal proceedings and have to check which conditions must be met. In cases involving controlled deliveries across borders, international cooperation must be sought in advance, also to ensure that the specimens do not enter the illicit trade ((INTERPOL & CITES, 2007; UNODC, 2012).

Even if used successfully, controlled deliveries frequently only expose perpetrators who come into contact with the contraband, which often makes follow-up investigations essential. Additionally, controlled delivery operations are time consuming and resource intensive. For these reasons, careful consideration needs to be given whether such measures are necessary and justifiable (INTERPOL & CITES, 2007). Consequently, controlled deliveries are not very common in investigating wildlife trafficking, although they do occur from time to time (EIA, 2016).

 

Crime scene investigation

Crime scene work plays a central role in the investigation of wildlife trafficking. Since such work can involve traces of perpetrators and objects of the crime as well as evidence that may be presented in court, crime scene investigations must be particularly meticulous and detailed records must be kept. It is also important that a proper chain of custody (the continuity of evidence) is maintained for each item of evidence (UNODC, 2012).

In the context of wildlife trafficking, crime scene investigations can be difficult because offences often take place in remote areas where no enforcement agencies are based and where laboratories and scientific expertise are not readily available (UNODC, 2012).

Crime scene work involves proper preparation and rapid preservation of relevant locations. It requires proper equipment and trained personnel familiar with crime scene management and record keeping (Cooper et al, 2009; UNODC, 2012). Wherever possible, such work should be led by a qualified crime scene investigator (FWG, 2014). To maximize the evidential potential of the location, a crime scene has to be properly established and precautions have to be taken to ensure that it is disturbed as little as possible (Cooper et al 2009; see also, FWG, 2014).

 

Forensic Science

The use of science and technology as part of investigating wildlife trafficking is a promising part of work in this area. In the context of wildlife trafficking, the use of forensics can be broadly divided into two areas: forensic techniques to assist in the identification or origin of species; and forensic techniques to link suspects or physical items to a crime (UNODC & CITES, 2016; UNODC, 2012).

Depending on the nature of the alleged offence, various types of forensic methods are used. Identification and morphological studies are used to determine the species of a particular animal by analysing bones, hair, feathers, scales, and other organs and tissues. This can also help establish the possible illegal origin of an animal part or plant (FWG, 2014; Cooper et al, 2009; UNODC, 2012). Microscopy or elemental analysis are used, for example, to identify ivory (UNODC, 2012). Pathological studies involving the examination of carcasses, organs, tissues, and other samples from dead animals can be used to determine the cause of an animal's death (Cooper et al, 2009; UNODC, 2012). DNA testing, discussed further in the next section, is widely used to track wildlife poaching and illegal logging especially through the use of DNA testing at points of origin, transit and final sale (Cressa & Zommers, 2014; UNODC, 2012; UNODC & CITES, 2016).

There are many other sciences that can be of great value in investigating wildlife trafficking, such as toxicology, which can be helpful in determining poisonings, for instance. Bullet matching fingerprints, trace evidence and forensic document examination are all important in catching the perpetrators. Document examination is very important in intelligence gathering and to identify falsified documents. As well, methods of estimating elapsed time since death (pathological, entomological or botanical) are very important in determining whether a poached animal was killed within or out of season, and with the latter two, these techniques are useful even years later.

To be able to produce the tests needed in an investigation of a wildlife or forest offence, it is necessary that relevant laboratories are equipped with the requisite infrastructure, that staff is qualified and well trained, and that laboratory work is performed in accordance with forensic standards (FWG, 2014; UNODC & CITES, 2016; see also, Wallace & Ross, 2012).

 

Other technologies

Other technologies used to investigate wildlife trafficking include, inter alia, satellite technology which helps to monitor illegal logging and other forms of illegal land clearance, including felling protected trees (Cressa & Zommers, 2014; UNODC, 2012).

Due to the frequent use of technology by wildlife and forest offenders, the analysis of mobile telephones, computers, and data storage devices is also important, and the field of digital forensics is growing (UNODC, 2012).

 

Next: DNA

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