Following the Proceeds of Environmental Crime

Fish, Forests and Filthy Lucre

Gregory Rose, Gregory Rose

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781134443055
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

Huge quantities of natural resources are illegally harvested and their proceeds laundered in the Asia-Pacific region, fostering corruption and undermining environmental governance. Most illegal exploitation and pollution occurs in countries with poor governance capacities, but much of the sale for profit and money laundering occurs in mature markets with well-developed governance capacities. Their asymmetrical enforcement capacities can complement each other.

This book explores ways to combat illegal fishing and logging in Asia-Pacific region by the use of cooperative legal measures, particularly anti-money laundering and confiscation of proceeds techniques. Contributors to this volume cover themes including: the nature of transnational environmental crime; patterns in laundering of illicit fish and forest products; networks for distribution of illicit products; weaknesses in current systems for assurance of the legality of products; and international legal cooperation to enforce anti-money laundering laws in relation to illicit products. In considering these topics the book explores how the innovative use of anti-money laundering measures and the seizure of criminal proceeds can as policy options to combat transnational fishery and forestry crimes.

The book will be of keen interest to scholars and students of environmental law and criminal law, and excellent use for practitioners in natural resources conservation law.

Part I

Introduction

1 Forests, fish and filthy lucre

Gregory Rose

This book explores a new frontier in environmental law: the use of financial intelligence to prosecute environmental crime.

Studies of how to follow the proceeds of environmental crime can inform governmental efforts to manage natural resources by improving our understanding of links between environmental crime and associated corruption and money laundering. It is hoped that these insights will translate into practical applications to combat environmental crimes by using financial intelligence to track the profits back to the ‘kingpins’ of environmental crimes.

Anti-money laundering techniques appear to offer great promise to law enforcers seeking to block and punish the beneficiaries of organized crime. However, these techniques are still largely an esoteric area of specialist practitioners within the criminal justice system. Anti-money laundering techniques are yet to make inroads into other areas of governmental regulation, such as environmental management.

Anti-money laundering also has its critics, particularly among academic commentators (Sharman 2011). A major concern is the imbalance between the great expense of sophisticated infrastructure for financial surveillance and intelligence as compared with the poor returns on investment. Vast amounts of data, time-consuming and complicated sifting and protracted legal cases may nevertheless lead to a futile end. Notionally, the use of anti-money laundering techniques should be generically applicable across all types of crime for profit. They have been used with some success to seize the proceeds of illicit drug trafficking, although with less success to seize the proceeds of corruption. Common sense suggests that it may be simpler and more efficient to apply anti-money laundering techniques to some types of crimes than to others. Their use to combat organized transnational environmental crime is largely untested.

Environmental harm and its prohibition

The notion of environmental crime is not new, although the phenomenon is evolving with startling speed in response to the increasing opportunities provided by new technologies. Environmental crime is premised on two elemental factors: the act of causing environmental harm and the illegality of that causal act.

The acts of direct harm to the environment can be conceived of in two categories: damage to the living world and damage to the inanimate world. Criminal damage to the living world may typically be the result of illegal exploitation, such as poaching, harvesting beyond allowances or with improper equipment or in prohibited areas or at prohibited times, or the illegal introduction of biological pests. Criminal harms caused to the inanimate world may include improper waste disposal, illegal use of hazardous substances, accidental or deliberate pollution and illegal alteration of habitats. Acts causing environmental harm undergo continuous metamorphosis and take on many modern forms.

The criminalization of these acts causing environmental harm expands in tandem with the growing sphere of governmental regulation and its broadening over the range of activities considered illegal. Yet the range of acts causing environmental harm expands more quickly than the range of reactive regulations and law enforcement techniques introduced by governments to combat them. The lag in regulation and enforcement is especially prevalent in countries with poor capacities for natural resources governance and law enforcement, such as the less developed countries located in the Asia-Pacific region. Much of the existing regional law enforcement and regulatory infrastructure is inadequate to prevent environmental crimes.

Defining crime: a procedural problem

The meaning of crime is potentially broad and is narrowed here within manageable bounds, then contracted further to the area of overlap between the subcategories of environmental crime and transnational crime.

A crime occurs when there is an intersection of two factors: (1) non-compliance with law and (2) specification that such a breach is an offence against that law. Non-compliance that does not entail a penalty cannot be a crime. A breach of a standard of behavior is more than mere non-compliance when it entails a penalty.

Furthermore, even non-compliance that does incur a penalty is not necessarily a crime. Penalties may be administrative or civil, rather than criminal. As governmental regulation has burgeoned, so have the types of sanctions and processes for addressing breaches of regulations, the range and diversity of which seem limited only by the imagination. Types of sanctions include imprisonment, fines, fees and other financial penalties, confiscations, compensation, bans, deregistration, suspensions, community service, enforceable undertakings, injunctions, withheld benefits, negative publicity, apologies, and so on. Terminology used to describe the wide variety of sanctions for crimes is often confusing and is sometimes inconsistent. Environmental crimes are generally minor offences for which administrative or civil sanctions and processes apply The characterization of a sanction as criminal, rather than as administrative or civil, therefore, is important within the context of international cooperation to combat environmental crime.

‘Administrative sanctions’ can be understood as penalties imposed by a regulator or some other enforcement body that is a government executive agency, ‘without intervention by a court or tribunal’ (Australian Law Reform Commission (Aust. LRC) 2002: 2.64). Given that administrative penalties generally result from the ‘mechanical’ or ‘automatic’ imposition of statutorily determined sanctions, and do not involve a judge at first instance, there are few procedural elements. They are defined in large part by the process of imposition. Notionally, these sanctions are intended to ensure the prevention of further damages rather than to penalize and abrogate rights (European Commission 2004: 6). They include fines, fees, taxes, infringement notices and orders to pay compensation, as well as loss of licenses, permits, allowances or privileges.

A ‘civil penalty’ is one ‘imposed by courts applying civil rather than criminal processes’ (Aust. LRC 2002: 2.45). Most commonly, civil sanctions consist of monetary fines, which can be imposed on both personal and corporate bodies, but can also extend beyond punishment to include imposition of corrective behavior activities and the payment of compensation.

In contrast, a crime is a breach of a law that incurs a criminal penalty. ‘Criminal sanctions’ are punishments imposed by courts for breaches of criminal law, such as by a fine or imprisonment, with imprisonment being within the exclusive jurisdiction of criminal law and entailing the stigma of a criminal record. Criminal sanctions are distinguished by their enforcement procedures, which are relatively formal (Aust. LRC 2002: 2.71). For example, they are required to be heard before a court presided over by a judge and, depending on the offense and jurisdiction, a jury. In the common law adversarial system, a prosecutor must tender evidence that proves beyond reasonable doubt that the accused intended and did commit the prohibited conduct. Most importantly, criminal procedural rights benefit the accused, including the presumption of innocence, prohibition on self-incrimination, the right to silence and the right not to be tried twice for the same alleged crime or for a retrospective crime.

Thus, the differences between criminal, civil and administrative sanctions lie within the procedures used to implement them. The main feature distinguishing criminal from civil and administrative sanctions is arguably the unique nature of the criminal trial. The legal processes prior to non-criminal sanctions also differ greatly. Criminal sanctions require police authorities to investigate criminal behavior and gather evidence. Within administrative processes, the investigation of breaches occurs on a lower evidentiary standard, presumptions of innocence generally do not exist and, in the cases of corporations, regulations may require cooperation with competent authorities.

In relation to international criminal law, non-criminal sanctions have been defined as ‘penalties for conduct proscribed under international criminal law, [but] which have been imposed by civil courts, administrative agencies of other law enforcement authorities outside of a criminal trial’ (Meyer 2006: 552). Thus, the international criminal trial itself is the sole identifier for whether a sanction is criminal or not. In addition, a significant difference between administrative and criminal sanctions is that the presumption of innocence within criminal procedures is not found within case law regarding civil and administrative sanctions.

International and transnational environmental crime distinguished

International institutional and academic studies in the field of environmental crime peaked in the late 1980s and first half of the 1990s, and tended to be criminological, examining primarily the motivations, patterns and social structures characteristic of environmental crime with a view to controlling and reducing it (Edwards, Edwards and Fields 1996). Thus, the focus of attention was on the phenomenon of environmental crime under national and local laws. Interest subsided in the mid-1990s and has recently revived, taking on a transnational focus, as evidenced by the several publications of Rob White (2008, 2009, 2010, 2011). The United Nations Interregional Crime and Justice Research Institute (UNICRI), having produced a book concerning the role of criminal justice in environment protection in the 1990s (Alvazzi del Frate and Norberry 1993), has recently recommenced work in this area (UNICRI n.d.).

The majority of contemporary studies on the subject of environmental crime are produced by environmental advocacy organizations in civil society, such as the World Wide Fund for Nature (WWF), TRAFFIC and the Environment Investigation Agency, and by think tanks such as Chatham House. These studies focus on hot topics within environmental sub-sectors, particularly wildlife, logging, fishing, hazardous waste and ozone-depleting substances (Environment Investigation Agency 2008; WWF-UK 2003).

In an age of globalization, environmental crime has adapted quickly to international opportunities generated by efficient transport, internationally integrated markets and instant financial transfers and communications. Illegally harvested natural resources enter international markets, profits are transferred internationally and laundered in multiple foreign countries, and, hence, an integral feature of the criminal activity is its cross-border nature. This inherently transnational dimension features strongly because it is usually to the advantage of criminals. Historically, law enforcement efforts are concentrated within a country’s national borders, with relatively weak arrangements for cross-jurisdictional cooperation. Therefore, a transnational dimension may be simple for organized crime to add to its activities but difficult for law enforcement authorities to respond to.

Consequently, the attention of intergovernmental institutions is gathering in this area, addressing its international dimensions. Since 2005, the Commission on Crime Prevention and Criminal Justice has undertaken a program of work focused on illegal logging and wildlife crime, and has since extended its work to address illegal wildlife trafficking. Illegal fishing has appeared on the agendas of the UN General Assembly, Economic and Social Commission, Food and Agricultural Organization. Also in 2013, the UN Environment Programme and INTERPOL convened a Summit on Environmental Crime and Compliance. This trend in intergovernmental activity has been considered likely to lead to overlapping institutional agendas and to the need for their coordination (Elliott 2007).

A distinction that needs be made in the context of the international institutional attention is between international and transnational environmental crime. International crimes are activities that offend against direct prohibitions upon them in international law. They are offences prescribed by the international community acting collectively, rather than by national governments. Clear-cut examples include the crime of genocide, war crimes and crimes against humanity, as set out in the Rome Statute of the International Criminal Court.

Despite the contention that states breaching international laws can be subjected to criminal penalties and be considered to commit international crimes, there are no environmental offences enacted under international law and directed against states. Nor are there environmental crimes prohibited by international law and directed against individuals.

Transnational crimes are those acts committed in breach of national laws in which the offences committed have elements that cross national borders. Transnational crimes do not offend against international law directly but offend against national laws, the commission of which has crossed national borders (Boister 2003).

The constitutive legal elements of transnational crime can vary widely, from physical acts, such as smuggling, to intangible acts, such as conspiring. The cross-border nature of these crimes ranges from simple movements across the border between two countries by a lone operator smuggling illegally harvested natural resources or prohibited species, such as illegally logged timber, to complex multi-layered transactions across multiple jurisdictions by organized criminal syndicates. The nature of fisheries crime, for example, is that it often involves a vessel that operates beyond the boundary of the flag state, is owned in another country, managed in yet another, uses officers and crew of diverse nationalities and lands its catch in the ports of yet other states. Intangible transnational elements can include organizing, financing, laundering or profiting outside the country in relation to an environmental crime committed partially inside it. Transnational environmental crime is among the categories of emerging transnational crimes identified by the United Nations (UN Office on Drugs and Crime n.d.).

The UN Convention on Transnational Organized Crime (CTOC) sets out a definition in Article 3.2:

For the purpose of paragraph 1 of this article, an offence is transnational in nature if:

(a) It is committed in more than one State;

(b)...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Notes on contributors
• Part I Introduction
• Part II Environmental crime in the Asia-Pacific
• Part III Laundering the proceeds of environmental crime
• Part IV Illegal fishing: combating crime and following the proceeds
• Part V Illegal logging: combating corruption and following the proceeds
• Part VI Improving environmental enforcement through financial intelligence cooperation
• Part VII Looking to the future
• Index