By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently working on a book about textile artisans.
The United Nations General Assembly earlier this month adopted a wide-ranging calling for a crackdown on illicit wildlife trafficking.
Wildlife trafficking operations have become increasingly sophisticated, often utilising organised crime networks. Rhinoceros poaching is only one of several sad examples I could cite– one that this recent Inter Press Service article, brought to my attention.
TRAFFIC, the wildlife trade monitoring network comprising 120 staff member working on five continents, released a last week documenting how some criminal networks of Chinese origin operating in South Africa are now processing rhino horn locally into small items– beads, bracelets, bangles and powder– to evade detection and provide ready-made products to Asian consumers (mainly Vietnam and China). Previously, the trade occurred in whole rhino horns, which were more difficult to conceal.
Nonetheless, more than 7,100 rhinos have been killed for their horns in Africa alone over the past decade, according to TRAFFIC. Most of the poaching– 91% of known losses in the continent– occurred in South Africa, home to 79% of Africa’s last remaining rhinos.
According to the TRAFFIC report:
The smuggling routes are complex and dynamic, exploiting weaknesses in border controls and law enforcement capacity constraints to provide a steady supply of rhino horn to Asian black markets. The routes span multiple airports, borders and legal jurisdictions, taking advantage of fragmented law enforcement responses that are hamstrung by bureaucracy, insufficient international co-operation and corruption.
Smuggling methods are infinitely versatile, limited only by imagination and opportunity. As new smuggling methods are identified by law enforcement agencies, trafficking networks adapt and refine their tactics, finding new methods of concealment and new weaknesses to exploit.
I’ve uploaded a copy of TRAFFIC’s report below, which makes for depressing reading.
Rhino horns are only one item targeted by illicit wildlife trafficking. The UN Resolution gives prominence to poaching of both rhinos and elephants– the latter targeted for their ivory– and also mentions trade in:
ockquote>other protected wildlife species, including, but not limited to, reptiles, tortoises, marine and freshwater turtles, sharks, ornamental fish, pangolins, great apes, parrots, raptors, the helmeted hornbill and big cats.
Poaching of these and other species threatens them with local extinction and, in some cases, leads to global extinction. Having visited India many times over the last decade or so, I’m well aware of efforts to protect tigers– and have indeed, been lucky enough to see some in the wild, at various national parks (admittedly, the sense of seeing one of these animals “in the wild” is somewhat diminished when the big cat is wearing a radio collar). Sadly, however, I think it only a matter of time before Indian tigers will only be found in zoos, or in closely policed, limited game preserves. If the poachers don’t get them, government policies that are allowing habitat destruction will.
The UN Resolution calls on General Assembly members to improve their criminal legal systems so as to target wildlife trafficking more effectively. The resolution:
Calls upon Member States to review and amend national legislation, as necessary and appropriate, so that offences connected to the illegal trade in wildlife are treated as predicate offences, as defined in the United Nations Convention against Transnational Organized Crime, for the purposes of domestic money-laundering offences and are actionable under domestic proceeds of crime legislation, and that assets linked to illegal trade in wildlife and wildlife products can be seized, confiscated and disposed;
Encourages Member States to make use, to the greatest extent possible, of legal instruments available at the national level to tackle illicit trafficking in wildlife, including through legislation related to money-laundering, corruption, fraud, racketeering and financial crime;
Also encourages Member States to harmonize their judicial, legal and administrative regulations to support the exchange of evidence regarding and criminal prosecution of illicit trafficking in wildlife, as well as to establish national level inter-agency wildlife crime task forces and facilitate the exchange of evidence between the different government agencies, to the extent consistent with national legislation;
Further encourages Member States to enhance their enforcement efforts, including through recording and monitoring both seizures and successful prosecutions, in order to more effectively counter and deter the illegal trade in wildlife;
Using Financial Investigation to Combat Wildlife Crime
The idea of using domestic money laundering statutes as a way of countering illicit wildlife trafficking is, in theory, a good one. In a September 2017 paper, , authors Cathy Haenlein and Tom Keatinge write:
As global efforts to address the wildlife crime crisis have expanded, the financial dimensions of this destructive crime have been overlooked. Instead, responses have typically comprised targeted anti-poaching and anti-trafficking measures, the promotion of sustainable livelihoods, and initiatives to reduce demand for wildlife products. These measures are crucial and have at times yielded positive outcomes in particular locations. Yet until the responses deployed include a significant financial crime-related element to undermine perpetrators’ profit-seeking motivation, this low-risk, high-reward crime will continue to thrive largely unimpeded.
For other crime types, financial investigation is viewed as central to identifying not only the individual criminal but also their network of facilitators. Yet where wildlife crime is concerned, financial investigation is not employed on anything approaching a systematic basis. This paper argues that there is an urgent need for those charged with disrupting wildlife crime to add a financial dimension to their approach. The paper refers primarily – but not exclusively – to East Africa, and is the final output of a year-long project researching wildlife-linked illicit financial flows in Kenya, Tanzania and Uganda (Haenlein and Keatinge, p. vii).
In addition to recognising wildlife crime as a predicate offense to money laundering, Haenlein and Keating call for those investigating wildlife trafficking to:
- Conduct parallel financial investigations as a matter of routine. Follow-on investigations must be carried out after all major seizures. In line with Financial Action Task Force (FATF) Recommendation 30, these must include parallel financial investigations. This would assist law enforcement agencies by providing additional evidence to identify the broader criminal network and locate the proceeds of crime. The financing of bail payments and the ease with which those convicted can pay fines to avoid custodial sentences should also be the subject of financial investigation;
- Freeze, seize and confiscate assets. Wherever possible, freezing, seizure and confiscation measures should be used to strip perpetrators of the proceeds of wildlife crime. This can offer a more powerful deterrent than custodial sentences, remove potential financing of future criminality, and allow the reinvestment of seized assets into measures to disrupt the predicate crime; and
- Prosecute under alternative legislation. In many jurisdictions, there are options to arrest, detain and prosecute illegal operators under laws other than those relating directly to wildlife. Prosecution under economic crimes legislation may increase the prospects of substantial penalties being imposed where associated crime types – from money laundering to corruption – carry weightier custodial sentences (Haenlein and Keatinge, p. viii).
Many of these recommendations are fairly obvious. I’m actually somewhat surprised that given the dire state of affairs with respect to wildlife trafficking, investigators don’t already “follow the money” in tracking their trafficking quarry. Although there has been increased recognition in the last couple of years of the seriousness of wildlife trafficking– as well as greater involvement by organised crime– as Haenlein and Keating note:
These moves, however, have not yet translated into implementation on the ground. In many jurisdictions, wildlife crime is not treated as a predicate offence to money laundering, impeding efforts to ‘follow the money’. A clear illustration is provided by the Asia Pacific Group on Money Laundering (APG), which, in 2016 with [United Nations Office on Drugs and Crime], conducted a survey of its 41 member states, other countries, to understand how each approaches wildlife crime. Strikingly, only 22% of respondents said that they treated wildlife crime as a predicate offence for money laundering in their legislation. Only 35% recognised wildlife crime as a risk in National Money-Laundering and Terrorist-Financing Risk Assessments prepared in advance of FATF Mutual Evaluations.
Accordingly, few practical efforts have been made to ‘follow the money’ generated by wildlife crime. Nor are measures systematically taken to identify, through financial intelligence gathering, the broader support networks of those who profit most from these activities.There are also few examples of successful moves to freeze or confiscate the proceeds of this crime. Although most states have systems to trace, freeze, seize and confiscate assets and the proceeds of crime, practitioners may lack the expertise to exploit such mechanisms. The situation in East Africa is reflective of this state of affairs. Here, as noted by the Eastern and Southern African Anti-Money Laundering Group (ESAAMLG), ‘despite arresting traffickers and seizing illegal wildlife products, law enforcement have failed to … confiscate/forfeit illegally acquired assets by [those] … wreaking havoc’ on the region’s wildlife (Haenlein and Keatinge, pages 7-8, citations omitted; see also the further extended discussion found at pages 9-12).
This trade generates big profits– how big, Haenlein and Keatinge concede, no one knows for sure:
The 2016 World Wildlife Crime Report, published by the [UNODC], refrains from specifying a figure, stating that ‘it is nearly impossible to give an accurate and consistent estimate of the criminal revenues generated by wildlife trafficking’. Such a stance derives from the significant difficulties inherent in any efforts to quantify such activity. Here, independent anti-smuggling consultant John Sellar stresses the issue posed by inadequate data collection, noting that ‘relatively few countries specifically collect data relating to wildlife trafficking’ (Haenlein and Keatinge, page 2, citations omitted).
I’m pessimistic about how effective the recommendations will be in trammelling this trade– especially given the demand for these items. Even if necessary and overdue changes were immediately made to national laws, and sufficient resources made available to enforce them, it seems to me that such measures will be undertaken too little, too late. That’s especially the case, as many of the endangered creatures are also subject to other pressures– habitat loss, for example, that’s at least as significant as the danger posed by poaching or capture. Unfortunately, once populations diminish beyond a certain point, it is difficult for them to recover.
I guess I should be pleased to see some sensible measures at least being floated– but alas, I fear these are simply not adequate to the task at hand.