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]).
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 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).
When considering whether certain conduct is prohibited by law or controlled in some way by law, it is important to bear in mind that the legal systems of Pacific Island States are plural legal systems in which customary law (usually unwritten) exists alongside formal, state law (which is usually written). Customary law may be very localised, so for example a local chief, or the community itself, may have decided to protect certain species of flora and fauna, by imposing restrictions, often in the form of taboos. Sometimes these restrictions are informed by traditional knowledge, other times they may be a result of outreach programmes by NGOs or government departments (eg fisheries), or a combination of these.
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).
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'.
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.
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.
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.
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.
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).
Vanuatu’s Wild Bird (Protection) Act sets out a range of offences in relation to wild bird life. Under section 2 of the Act, it is an offence to kill, wound, capture, or take the eggs of certain bird species without prior permission. Sections 3 and 4 make it an offence to kill et cetera certain species during a nine-month breeding period. Under section 4, it is an offence at other times to kill more than ten birds in any one day by using firearms. The sale, purchase, and export of protected species under sections 3 and 4 is an offence under section 5. Hunting at night of any bird species is prohibited by section 6 and section 7 makes it an offence to import traps and net to capture birds without prior permission.
Drift net fishing (sometimes called drift netting) is a fishing technique using nets that hang vertically in the water without being anchored to the bottom. They are usually attached to floats (connected by rope) at the top and to weights (connected by another rope) at the bottom. Fish are caught when their tails or fins entangle in the net as the fish are trying to escape. Originally used as a traditional fishing technique, it became a commercial fishing practice because it is cost effective; the nets can be dropped by low-powered vessels and bring in large amounts of fish in one catch. The use of drift nets is controversial and has been outlawed in some countries because any fish that crosses the drift net may get tangled or caught, which can include endangered species and other by-catch not used for consumption. Air breathing mammals may also get caught and die if they cannot free themselves. The use of driftnets is also prohibited under the Wellington Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific.
Drift net fishing is illegal in Vanuatu. Simply possessing a drift net is an offence under section 90 of the Fisheries Act, punishable by imprisonment of up to five year or a fine of up to VUV 500 million. In February 2021, the captains of two Chinese fishing vessels were accused of carrying driftnets and fishing illegally in Vanuatu. 14 officers and crew of the vessels were also charged with lesser offences.
In March 2017, the Solomon Islands Maritime Police patrol vessel deployed from Honiara with police and fisheries officers on board, following reports of four foreign “blue boats” that had been sighted within Solomon Islands territorial waters. The four boats refused to comply with enforcement orders, so a second Maritime Police vessel was deployed to assist. Three of the foreign vessels were apprehended, while the fourth vessel escaped law enforcement efforts. The vessels were found to have illegally entered Solomon Islands waters and were using prohibited fishing gear, such as diving compressor hoses, to illegally harvest sea cucumber, giant clams, and other marine resources. A total of 43 men were taken into custody from the vessels, all Vietnamese nationals.
The three vessel operators stood trial in July 2017 and pleaded guilty to four offences under the Fisheries Management Act 2015: illegal entry into Solomon Islands fisheries waters without appropriate entry permit, illegally harvesting sea cucumber, possession of prohibited fishing gear, and processing sea cucumber for export without an appropriate licence.
The court did not see sufficient evidence to support the defendants’ claim that they were subject to human trafficking for the purpose of forced labour on the fishing vessels. The fact that the defendants tried to escape law enforcement interception was considered an aggravating circumstance. During the sentencing, the court emphasised the need for a deterrent penalty as the Solomon Islands seemed to be viewed as a “soft target” by illegal fishing operators.
The defendants were sentenced to two years imprisonment and fines amounting to SBD 11,050,000 (USD 1.4 million). Another default period of two years imprisonment would run consecutively to the existing custodial sentence if the payment of fines did not occur within 30 days. Furthermore, the three vessels were forfeited to the Solomon Islands Government.
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).
Under section 4 of the Forest Resources and Timber Utilisation Act [Cap. 40] (Solomon Islands) it is an offence, punishable by a fine of SBD 3 000, two years imprisonment, or both, to log without a felling licence or to fail to comply with the conditions of a felling licence. It is also an offence, punishable by a fine of SBD 100 or imprisonment for three months, to log in certain areas without prior authorization of the Commissioner of Forests.
A publication by the Royal Solomon Police Force offers a hypothetical case example and discusses the application of relevant offences in this case:
Some women from the market come into Auki police station complaining that their river water has been polluted from soil washing down from an area that a company has been logging. The soil has made their drinking, cooking, and washing water very dirty, and they can no longer safely use it. The logging company has also been cutting down trees very close to their gardens and village. The women tell the police officer that the logging company has been taking trees from the area for a long time and that they are not sure if there is a licence for the logging.
There are a number of offences that may have been committed here, including: (1) logging without a felling licence (section 4 Forest Resources and Timber Utilisation Act), (2) failing to comply with the conditions of a felling licence (section 4 Forest Resources and Timber Utilisation Act); and (3) logging in certain areas, including land that is 400 metres above sea level, land within 100 metres of a village, land within 30 metres of a garden, and within certain distances of streams and gullies, without the authorization of the Commissioner of Forest Resources (Regulation 13 Felling Regulations). If there is a logging licence, then the fact that soil is washing down the river might mean that the logging company is not complying with the conditions of its licence or has been logging in prohibited areas. There are several other offences that may also have been committed, such as logging without a development consent, in a protected area, or without a provincial government business licence.
Under section 19 of the Environment Act 1998 (Solomon Islands), it is an offence, punishable by a fine of up to SBD 10 000, imprisonment for up to one year or both, to log without a development consent.
A publication by the Royal Solomon Police Force offers a hypothetical case example and discusses the application of relevant offences in this case:
A group of men come into the police station in Gizo to make a complaint. They tell the police officer that a few days ago a logging barge landed near their village. Bulldozers and other machinery were taken off the barge and workers started to clear trees. The villagers asked the logging company for a copy of their licences, but the logging company did not give them any documents. The villagers had been told by some wantok in Honiara that a logging company might be coming to the village. However, no one in the village remembers the logging company, the Ministry of Environment, or the provincial government speaking with them about the logging. They also do not remember being given a copy of a ‘public environmental report’ or ‘environmental impact statement’ to comment on. The villagers are very upset. The men are threatening to set fire to the logging equipment, and the women and children are currently blocking the access track to the forest.
Anyone who wishes to carry out logging in Solomon Islands must obtain a development consent from the Ministry of Environment, Climate Change, Disaster Management and Meteorology. Landowners must be consulted before a development consent is issued, and the logging company must also have prepared an environmental impact statement and given a copy to the landowners for their comments. In the current situation, the landowners cannot remember speaking about the logging, or being given a copy of the environmental impact statement. It is therefore possible that the logging company does not have a development consent, or, if they do, that it was not obtained in the proper way. Therefore, one possible offence that is likely to have been committed here is logging without a ‘development consent’. There are several other environmental laws that may have also been broken here, including logging without a felling licence and without a business licence from the provincial government.
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).
Under section 46(1) of Samoa’s Fisheries Management Act 2016 it is an offence to operate a fish processing establishment without a licence (as prescribed by section 47). Under section 80, the offence is punishable by a maximum fine of 1 000 penalty units (approximately USD 2 500) or imprisonment for up to 12 months or both. Higher penalties apply if the offence is a continuing one.
In April 2019, a restaurant and hotel owner in Samoa was convicted and sentenced in September 2021 for this offence and for operating a sea cucumber fishery for export purposes after an investigation found 431 kg of sea cucumbers ready for export at his properties. The total market value of the seized sea cucumber was estimated to be USD 341 000. As a first-time offender, he was ordered to pay a fine of USD 1 500 or face a jail term of three months.
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.
In 2017, the Solomon Islands Parliament passed the Wildlife Protection and Management (Amendment) Act to comply with obligations arising under CITES, the Convention on International Trade in Endangered Species of Wild Flora and Fauna. Under section 3E and 3F the Act introduced two new offences in relation to international trade of species protected under CITES:
Section 3E Prohibition on international trade of CITES specimens
A person commits an offence if the person trades in a CITES specimen in contravention of this Division.
Maximum penalty: 50,000 penalty units or 5 years imprisonment, or both.
Section 3F Possession of illegally traded specimen
A person commits an offence if:
(a) the person possesses or offers for sale or display a CITES specimen; and
(b) the specimen has been traded in contravention of this Act; and
(c) the person knows or has reason to suspect the specimen has been traded in contravention of this Act.
Maximum penalty: 50,000 penalty units or 5 years imprisonment, or both.
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).
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).
Exporting certain species, such as turtles, without a scientific research permit is a criminal offence, punishable by a fine of up to SBD 5 000 or imprisonment for up to 6 months under section 11 of the Wildlife Protection and Management Act (Solomon Islands). Exporting other species, such as the giant clam, without a commercial export permit is a criminal offence, punishable by a fine of up to SBD 3 000, or imprisonment for up to 3 months under section 11. In addition, a person who without reasonable excuse has in his possession: (a) on board a vessel or aircraft any specimen obtained in contravention of the provisions of the Wildlife Protection and Management Act; or (b) any specimen that he knows or has reasonable grounds to suspect has been imported or is to be exported in contravention of the provisions of the Wildlife Protection and Management Act is guilty of an offence and liable on conviction to a fine not exceeding SBD 10 000 and/or to imprisonment for a period not exceeding five years (section 26).
A publication by the Royal Solomon Police Force offers a hypothetical case example and discusses the application of relevant offences in this case:
Some landowners come into Noro police station complaining that they have noticed that people have been taking turtles and giant clams and putting then on a boat owned by a logging company that they think is going to leave Solomon Islands soon.
Schedule I of the Wildlife Protection and Management Act (Solomon Islands) lists plants and animals that can only be exported by an ‘approved persons’ (i.e. a person, institution or organization that has been declared as approved under section 8 of the Act) who also holds a valid scientific research permit under section 14(5). Five turtle species are listed as Schedule 1 specimens under the Act: Dermochelys coriacea (Leatherback turtle), Eretmochelys imbricata (Hawksbill turtle), Chelonia mydas (Green turtle), Lepidochelys olivacea (Olive Ridley turtle), and Caretta carreta (Loggerhead turtle). Therefore, any person trying to export the turtles would need a scientific export permit; if the people who are taking the turtles do not have such permits, they have therefore committed an offence against section 11 of the Act.
Schedule II of the Wildlife Protection and Management Act lists plants and animals that can only be exported by an ‘approved person’ (section 8) who also holds a valid commercial export permit. Schedule II currently lists eight types of giant clam that need a commercial export permit under section 14(4). The people who are taking the giant clams may have therefore committed an offence against section 11 if they do not hold such a permit. There are several other offences that may also have been committed, including under the Fisheries Management Act 2015 and provincial ordinances.
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).
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 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; […]
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).
Under section 30 of the Forest Resources and Timber Utilisation Act [Cap. 40] (Solomon Islands) it is an offence to receive any ‘forest produce’, which includes, inter alia, trees, timber, poles, palms, bamboos, canes, grass, moss, fungus, plants leaves, bark, wood extracts, gums, oils, resins, latex, rubber, that was obtained in violation of this Act (for example by being logged or harvested unlawfully):
Any person who receives any forest produce knowing or having reasonable cause to believe it to have been obtained in contravention to this Act shall be guilty of an offence and liable to a fine of one thousand and five hundred dollars or to imprisonment for one year or to both such fine and such imprisonment.
Vanuatu’s Fiesheries Act 2014 provides for the management, conservation and development of fisheries in fisheries within Vanuatu waters and related matters. It also concerns, among other things aquaculture, seafood safety, the use of vessels on high seas and protection of marine mammals and provides for the establishment of the Fisheries Management Advisory Council, the Vanuatu Seafood Verification Agency and the International Fisheries Unit. The Act establishes a Vanuatu Marine Mammals Sanctuary, which comprises all Vanuatu waters and prohibits, among other things, the possession of marine mammals, marine mammal parts or marine mammal products.
Section 93 Protection measure
(1) A person must not kill, harm, harass, take or move a marine mammal in the Vanuatu Marine Mammals Sanctuary.
(2) A person must not:
(a) possess, hold in captivity or restrict the movement of any marine mammal in the Vanuatu Marine Mammals Sanctuary; or
(b) possess a part of a marine mammal, or a product produced from a marine mammal, taken in the Vanuatu Marine Mammals Sanctuary.
(3) Until the contrary is proved all marine mammals, marine mammal parts and marine mammal products found in the possession of a person in Vanuatu are presumed to have been taken in the Vanuatu Marine Mammals Sanctuary.
(4) A person must not export from Vanuatu or facilitate the export from Vanuatu of any marine mammal, marine mammal part or marine mammal product.
(5) A person must not import into Vanuatu or facilitate the importation into Vanuatu of any marine mammal, marine mammal part, or marine mammal product.
(6) To avoid doubt, despite this section, whale vomit or ambergris is not taken to be a marine mammal part or marine mammal product.
(7) A person who contravenes subsection (1), (2), (4) or (5), commits an offence punishable on conviction by a fine not exceeding VT500,000,000 or by a term of imprisonment of not more than 2 years, or both.
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:
Mitigating factors may include, for instance:
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.
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.
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.
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 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.
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.
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).
Section 29 of the Forest Resources and Timber Utilisation Act [Cap. 40] (Solomon Islands) sets out special offences for falsification of timber marks:
Any person who -
(a) knowingly counterfeits upon any tree or timber, or has in his possession any implements for counterfeiting, any mark used by enforcement officers or forest officers to indicate that such tree or timber may lawfully be felled or removed by some person; or
(b) unlawfully or fraudulently affixes to any tree or timber any mark used by enforcement officers or forest officers; or
(c) alters, defaces or obliterates any such mark placed on any tree or timber by or under the authority of an enforcement officer or a forest officer; or
(d) wastes timber by such acts or operations as are specified in the regulations,
shall be guilty of an offence and liable to a fine of three thousand dollars or to imprisonment for two years or to both such fine and such imprisonment.
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.
In 2018, a prominent politician was found guilty of six counts of abuse of office (section 96 Penal Code (Solomons Islands)) after receiving more than USD 14 619 in business licence fees from various companies in the capital Honiara that were carrying out shipping, logging, and trading activities in Temotu Province. The offences occurred between 2006 and 2008 when the politician was a provincial premier and pocketed business licence fees from the companies for his own benefit. He was originally also charged with six counts of official corruption (section 91), but the prosecutor substituted these charges when the defendant pleaded guilty to the lesser offence of abuse of office. (Radio New Zealand, 2017; Radio New Zealand, 2018)
91. Any person who-
(a) being employed in the public service, and being charged with the performance of any duty by virtue of such employment, corruptly asks for, solicits, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office; or
(b) corruptly gives, confers, or procures, or promises or offers to give or confer, or to procure, or attempt to procure, to, upon, or for any person employed in the public service, or to, upon, or for any other person, any property or benefit of any kind on account of any such act or omission on the part of the person so employed,
is guilty of a felony and shall be liable to imprisonment for seven years.
Abuse of office
96. (1) Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another, is guilty of a misdemeanour.
If the act is done or directed to be done for purpose of gain, he shall be guilty of a felony, and shall be liable to imprisonment for three years.
(2) A prosecution for any offence under this or either of the two last preceding sections shall not be instituted except by or with the sanction of the Director of Public Prosecutions.
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 Module Series on Organized Crime.
Studies and analysis conducted by the Financial Action Task Force (FATF) together with UNODC under the Law Enforcement Assistance Programme (LEAP) to reduce tropical deforestation estimates that illicit financial flows originating from forestry crimes in Papua New Guinea amount to more than 100% of the value of the licit timber market on average (ranging from about 80% up to about 130%).
Papua New Guinea carried out its first FATF Money Laundering and Financing of Terrorism National Risk Assessment (NRA) in 2017 which identified strong indicators of large-scale corruption and illegal logging in the country’s forest sector. In line with the findings of the NRA, the 2017–2022 National Anti-Money Laundering and Counter Terrorist Financing Strategic Plan requires the Papua New Guinea Forest Authority (PNGFA) to conduct a sectoral risk assessment. The NRA identified that environment crime covers a wide range of offences and does not limit it to mining related crimes and waste trafficking. (FATF, 2021)
Money laundering and financial crime are also tools utilised by foreign corporations operating in Pacific Island nations. 'Logging companies in Solomon Islands have been linked to bribery and tax evasion, among other crimes’. (Harris, NZYIL, 2019). These companies are often able to take advantage of complex or under-enforced legal frameworks to extract timber illegally and then transfer the wealth generated between various corporate structures to avoid detection or efforts to remediate loss when illegality is established. This is a situation raised by lawyers in cases in both Papua New Guinea and the Solomon Islands, which highlights the importance of looking beyond forestry law when trying to combat forest crime and related offences. It is necessary to ensure that efforts to combat corruption, money laundering and financial crime are aligned to support efforts to prevent environmental crime and this alignment can provide new avnues for prevention and enforcement. It is also important to recognise that forestry is often an important component of Pacific economies and a further component of illegality that emerges is corporate tax avoidance, particularly through transfer pricing or corrupt tax exemptions negotiated with government officials. (Wairiu, 2007) Tackling the complex relationship between corporate and government interest in the Pacific region is an important consideration in addressing wildlife crime generally, and illegal logging in particular.
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).
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.
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 Module Series on Organized Crime).
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)).
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.