The Rise of Environmental Crime: A Growing Threat to Natural Resources, Peace, Development and Security

The legal framework on environmental crimes Criminals exploit the lack of international consensus and the divergence of approaches taken by countries. What may constitute a crime in one country, is not in another. This effectively enables criminals to go “forum shopping” and use for example one country to conduct poaching, another to prepare merchandise, and export via a third transit country. According to UNODC, corruption is the most important enabling factor behind illegal wildlife and timber trade. 29 Identifying the optimal legal framework for preventing, combating and prosecuting environ- mental crimes requires careful consideration.

Firstly, with the extent of the crises, many have called for designating any violation of wildlife or environmental laws and regulations to be designated as “serious crimes”. Another proposal is to designate illicit trafficking in protected species of wild fauna and flora involving organized criminal groups” as serious crimes. While the latter may serve a purpose, careful consideration must be made to ensure such an approach does not undermine principles of proportionality between offense and punishment. A hunter taking the wrong deer should for obvious reasons not be punished to the same extent as an organized criminal involved in large-scale illegal deforesta- tion, the killing and trafficking of hundreds of rhinos or thou- sands of elephants, or someone funding large-scales atrocities from gold or diamond smuggling revenues, by supporting terrorism or armed violent groups. Secondly, the type of definition and designation of the offense may lead to the wrong laws or regulations being applied in prosecution. Many emerging definitions for environmental crime have actually constrained the term by limiting it to crimes associated with breaches of environmental legisla- tion only 30 or endangered species only. This seriously reduces opportunities for prosecution and punishment, since envi- ronmental crime is typically only seen to refer to infractions (fines) or misdemeanours (fines or shorter term imprison- ment), rather than felonies. An important point is the fact that an offence is a crime only if the state decides to punish a certain behaviour through criminal law. Criminalizing an environmental offence can, in certain cases, be an effective and dissuasive way to achieve proper implementation of environmental law. However, there are large differences between the criminal sanctions provided for environmental offences across the globe and often existing criminal sanctions are not sufficiently stringent to ensure a high level of environmental protection. Similarly, the capacity of governments to enforce criminal law greatly varies. This is particularly true in many of the least developed countries,

where very little development support has gone to strengthen the enforcement and judicial sector. Indeed, one of the biggest differences between many industrialized countries and the least developed, is the much larger proportion of police compared to the prosecuting or judicial sector. For example, in North America, 44% is spent on courts and prosecution and 56% on police, while in the countries in southern Africa only 16% is spent on prosecution/courts and 84% on police. 31 The necessity of a wider approach is intrinsically recognized by the UN Convention on Transnational Organized Crime (UNTOC), that intentionally does not define transnational organized crime or list the kinds of crimes that might consti- tute it, simply to enable a broader applicability of the conven- tion on new and emerging forms of crime. It does, however, define organized criminal groups. 32-33

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