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Poachers without borders
19 November 2014

Worldwide, the value of organised environmental crime is estimated to be between US$70 and US$213 billion annually. Global development assistance, by comparison, is estimated at US$135 billion per annum.

Developing states are losing much-needed revenue and opportunities to environmental crime, and this crisis should be at the heart of the both the development and security debates in Africa. Central to this is the often transnational nature of environmental crime.

The recent indictment in the United States (US) of the infamous Groenewald brothers has again shown how criminal networks and syndicates often use multiple countries to further their trade in wildlife, particularly in Africa.

The brothers, whose syndicate was made up of a number of professional hunters and veterinarians, tried to use loopholes and fraud to circumvent South African and US laws. One of their methods was to have American hunters kill rhinos (which the hunters were told was legal), after which the brothers would sell the horn to lucrative markets in Asia. Multiple countries and nationalities were therefore involved in the supply of the horn to Asia.

While the brothers’ syndicate already faces numerous charges in Pretoria, US lawmakers have initiated additional charges against them, including wildlife crime, mail fraud and money laundering, using the Lacey Act of 1900. The Lacey Act is a powerful piece of legislation that prohibits violations of US and foreign wildlife laws, and can enact harsh penalties as well as financial restitution.

Criminal networks often use multiple countries to further their trade

This is not the first time that the Lacey Act has been used to charge South Africans. Last year, following its spectacular use in the case of Arnold Bengis, his son and his former business partner, the defendants were ordered to pay nearly R300 million in restitution for illegally exporting rock lobster to the US. The use of the Lacey Act in both cases illustrates how a multi-dimensional and transnational approach can be used to disrupt and cripple organised crime networks, including those that specialise in environmental crime in an increasingly globalised world.

Environmental crimes are notoriously difficult to prosecute across borders given the manner in which crimes are legislated. Environmental crime law is made up of international treaties and conventions, national laws, provincial laws and even city and district by-laws. Unlike, for instance, the trafficking of drugs, it is far harder to separate the legal from illegal in environmental crimes. For example, abalone caught in South Africa has, in several cases, easily been passed off as legal abalone from a neighbouring country.

Diplomatically, South African government officials have experienced a mixture of successes and failures in investigating and prosecuting such crimes. While some governments, such as the US, have been accommodating, the reception from many East Asian countries and other African countries has been less than welcome, as environmental crime is not seen as a priority issue.

Furthermore, the level of interaction between different governmental institutions has been notably low. The signing of memorandums of understanding (MOUs) between the governments of South Africa and Mozambique on biodiversity protection, as well as previous MOUs with countries such as Vietnam, are a step in the right direction. However, South African officials continue to lament the lack of international cooperation in wildlife crime.

It has been argued that fishermen had to turn to piracy as a means to survival

The failure of governments to act may, in part, be due to corruption. Equally, a lack of state capacity and political will could also contribute. Yet, environmental crime ought to be placed at the centre of both the development and security debates in Africa. Failing to respond effectively to these crimes may have a host of disastrous consequences.

One example is illegal fishing and the dumping of hazardous waste being linked to the growth of piracy on the east coast of Africa. It has been argued that fishermen, unable to survive due to rampant illegal overfishing and water pollution, had to turn to piracy as a means to survival. Another significant example is the reliance of many African militias and armed groups on environmental crime such as illegal logging, resource theft and poaching. Armed conflicts like those in the Central African Republic and the Democratic Republic of the Congo are heavily funded by the proceeds of environmental crime.

Making environmental crime a priority area in diplomacy, and developing legislation similar to the Lacey Act, must be treated with urgency across the continent. Taking the profit out of crime and providing embattled countries with restitution for the exploitation of natural resources is an essential step.

Importantly, legislation should be expanded and harmonised to support prosecutions. A recent Africa Prosecutors Association workshop on environmental crime also recommended that specific environmental crime legislation, in line with the African Union Model law on Universal Jurisdiction and international guidelines, should be promulgated.

While these steps will not cover all stages and locations in the supply chain, it is an important phase in prioritising environmental crime and framing this crisis as part of a broader debate on development.

Khalil Goga, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

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