International cooperation in the investigation and prosecution of environmental crime. Problems and challenges for the legislative and judicial authorities

Author:Prof. Dr. John A.E. Vervaele
Pages:126-143
SUMMARY

In this article we aim to verify the hypothesis that international cooperation in criminal matters will strongly rely on the national design of the regulation and enforcement of environmental law (incriminations, authorities, powers). Second, if this is the case, does it create particular problems that undermine the effectiveness of environmental protection through criminal law in this field? For answering these questions we propose to analyse, first, the relationship between the international environmental regulation and the international enforcement obligations. Second, we have to verify whether and to which extent the international norms on judicial cooperation in criminal matters relate to environmental enforcement. Finally, we will conclude with some recommendations to remedy the particular problems.

 
CONTENT
126 JOHN A.E. VERVAELE
INTERNATIONAL COOPERATION IN THE INVESTIGATION
AND PROSECUTION OF ENVIRONMENTAL CRIME
PROBLEMS AND CHALLENGES FOR THE LEGISLATIVE
AND JUDICIAL AUTHORITIES
Prof. Dr. John A.E. VERVAELE1
Abstract
In this article we aim to verify the hypothesis that international cooperation in criminal matters
will strongly rely on the national design of the regulation and enforcement of environmental law
(incriminations, authorities, powers). Second, if this is the case, does it create particular problems
that undermine the effectiveness of environmental protection through criminal law in this field?
For answering these questions we propose to analyse, first, the relationship between the
international environmental regulation and the international enforcement obligations. Second, we
have to verify whether and to which extent the international norms on judicial cooperation in
criminal matters relate to environmental enforcement. Finally, we will conclude with some
recommendations to remedy the particular problems.
Keywords: international cooperation, environmental crime, criminal law, legislative and
judicial authorities, legal practice.
1. Introduction: the regulatory and enforcement policy chain
In scholarly work and legal practice a great deal can be found about the
transnational nature of many environmental crimes and the global harm resulting
from some serious violations. Trafficking in endangered species (flora and fauna)
or substances therefrom put not only their survival at risk but also deprives
humanity of extremely important natural resources for their own life quality and
survival, not to speak of the damage to the biodiversity of planet earth. Trafficking
in hazardous waste creates not only a high potential risk of pollution, but also puts
endangers human beings who recycle them in illegal circumstances. Emissions of
greenhouse gases by manipulated diesel engines have their impact on global
warming, an increase in the sea level and new phenomena such as El Niño in the
Americas. Is has become clear that the protection of the environment is not only
1 Professor of economic and European criminal law, Utrecht Law School/the Netherlands;
Professor of European criminal law, College of Europe, Bruges/Belgium; President of the AIDP.
Law Review vol. VI, issue 2, July-December 2016, p. 126-143
International cooperation in the investigation and prosecution … 127
about a specific nature-related interest, but also the systemic preservation of the
commons of nature, essential for the life conditions of human beings and flora and
fauna. The protection of the environment through criminal law does have to
protect the essential interest related to the preservation of the commons. All serious
and longstanding (potential) harm to these commons of nature committed by gross
negligence, recklessness or intent do qualify for criminal law enforcement as they
endanger sustainable development and people’s very existence. They are also
related to a broader concept of serious human rights violations and positive duties
for States to protect life and living quality standards, including those of minorities
who live in areas with a great potential for natural resources that can be exploited. In
other words, there is a mix of criminal offences, human rights violations and societal
harm at stake. Finally, some of the violations could be qualified as war crimes under
the Rome Statute of the International Criminal Court2 or as ecocide3 when human
and/or corporate behaviour cause extensive damage, the destruction or loss of
ecosystems of a given territory to such an extent that peaceful enjoyment by the
inhabitants of that territory has been severely diminished.
Although much of this conduct might already be criminalized in national
jurisdictions, it does not however mean that international public law dealing with
environmental norms contains obligations about the duty to criminalize, its
constitutive elements, sanctions and its jurisdictional reach. Neither do the
specialized conventions on judicial cooperation in criminal matters focus on
environmental offences or do the domestic norms on judicial cooperation in
criminal matters refer explicitly to transnational environmental enforcement. From
this statement we can derive that the policy cycle or chain of regulation and the
enforcement of environmental norms contains several gaps or weak points. This
policy circle/chain consists of the following 6 dimensions:
International regulation of the environment, especially multilateral
environmental agreements (MEAs) (international environmental dimension);
National regulation of the environment (national environnmental dimension);
International regulation of the criminal enforcement of environmental
protection (international enforcement dimension);
National criminal enforcement design in relation to environmental protection;
2 Article 8(2)(b)(iv) of the ICC prohibits ‘[i]ntentionally launching an attack in the knowledge that
such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or
widespread, long-term and severe damage to the non- human environment which would be clearly
excessive in relation to the concrete and direct overall military advantage anticipated.’
3 M.A. Drumbl, ‘Waging War against The World: The Need to Move from War Crimes to
Environmental Crimes’, Fordham International Law Journal , 1998–9, vol. 22, p. 122.
128 JOHN A.E. VERVAELE
International regulation of judicial cooperation in criminal matters, especially
of mutual legal assistance (international cooperation dimension);
National regulation of judicial cooperation in criminal matters, especially in
relation to substantive and procedural criminal law dealing with the environment
(domestic criminal justice dimension).
At first glance we can already deduce some preliminary conclusions. When
looking at the content of the regulation of environmental standards and norms at the
international and domestic level, it is very clear that environmental protection covers
a wide range and variety of very different fields and interests. Pollution,
construction, mining, natural resources, trade, water management are just some
examples. Second, it is also striking that international environmental law very rarely
contains criminal law obligations. The Convention on the Protection of the
Environment through Criminal Law of the Council of Europe in 19984 is one of the
rare exceptions, but the Convention has not yet entered into force due to the lack of
the necessary number of ratifications. From this we can already deduce the
hypothesis that international cooperation in criminal matters will strongly rely on
the national design of the regulation and enforcement of environmental law
(incriminations, authorities, powers). Considering the variety of environmental
protection the environmental offences include a wide variety of illegal conduct,
extending from classic pollution (air, water, soil) to illegal construction in protected
areas, illegal mining, illegal fishing, illegal logging and harvesting, poaching,
trafficking in endangered species and illegal waste and serious violations of carbon
trading and water management. Some forms of conduct are committed at the local
level, while others are transnational in their nature. Some forms of conduct are
committed by individual players or firms, others are committed by organized crime
or terrorist organisations. In some forms of conduct there is also strong participation
by governmental actors, including the police and the armed forces, certainly in
countries where they have strong autonomy and great economic interest.
Considering this wide variety it is impossible to deal with my topic as if the
problems and challenges were the same in every environmental field. In the case of
the VW-Diesel emission scandal the problems of international cooperation are
mostly related to concurring jurisdictions, multiple investigations and the risk of
double prosecutions. In the case of trafficking offences the cases are mostly
transnational in nature and trigger, by definition, judicial cooperation in criminal
matters. However, it has to be underlined that even for environmental offences
that have no transnational character at all, judicial authorities might need
cooperation for gathering evidence, for the detention and extradition of suspects,
4 European Treaty Series, No. 172.
International cooperation in the investigation and prosecution … 129
for the execution of sanctions etc. This means that the whole variety of
environmental crimes could trigger international cooperation. However, the
problems and challenges are not always the same. For this reason I have chosen to
tackle our topic from the dimension of natural resources crime and, more
specifically, wildlife trafficking offences, for which we have a strong elaborated
international regulatory framework laid down in the CITES Convention5 which
entered into force in 1975, and the International Tropical Timber Agreement
(ITTA) of 1983 and 1994 which was replaced by the one from 2006 that entered into
force in 20116. CITES is the principal international instrument to control and
regulate the international trade in protected species and to ensure that the
international trade in specimens and wild animals and plants does not threaten
their survival. Also species are listed and submitted to specific regulatory
obligations (permits and permit requirement) depending on their status
(threatened with extinction, in danger, to be monitored). It is mostly a trade
regulatory convention and contains very few specific criminal law obligations,
although it does impose upon member states a general enforcement obligation.
This means that, due to the lack of comprehensive international legal norms
dealing with wildlife and forest offences, the domestic criminal law is primarily
responsible for the nature and scope of wildlife and forest offences. ITTA aims at
promoting the expansion and diversification of the international trade in tropical
timber from sustainably managed and legally harvested forests. It is aimed at
environmental preservation in combination with encouraging market benefits.
Domestic law will have to deal with the following offences if it wants to
counter, through criminal law, illegal, unregulated and unauthorized poaching
and logging and the traffic in protected species and substances in order to preserve
biodiversity and natural resources:
Wildlife offences Fores
t
Offences Associated offences7
Ori
g
in ori
g
in poachin
g
(illegal hunting)
illegal possession
illegal processing
ille
g
al lo
gg
in
g
illegal
possession
illegal
processin
g
corruption/or
anized
crime
tax offences
document fraud
mone
y
launderin
g
Transit illegal export
illegal possession
illegal export
illegal
corruption/organized
crime
5 United Nations, Treaty Series, vol. 993, No. 14537.
6 United Nations, Treaty Series, vol. 2797Doc. TD/TIMBER.3/12.
7 This is a simplified version of Table 1, Wildlife, forest and associated offences at origin, transit
and destination points in UNODC, Wildlife and Forest Crime Analytical Toolkit, p. 35, New York,
2012.
130 JOHN A.E. VERVAELE
illegal processing possession
illegal
processing
tax offences
customs fraud
document fraud
money laundering
Destination illegal import
illegal possession
illegal supply and
sale
illegal import
illegal
possession
illegal supply
and sale
corruption/organized
crime
tax offences
customs fraud
document fraud
money laundering
The extent to which and the way in which States have incriminated this
behaviour shows very significant variations. Some States prefer to deal with some
of this conduct under civil law (product liability) or administrative law (violations
of permit obligations). Even when incriminating, some States do this in the
criminal code, others in special statutes. Also the incriminations in themselves do
vary a great deal. Some States choose incriminations that sanction non-compliance
with administrative obligations (permit and permit conditions); others also
provide for autonomous incriminations, certainly when human health is put in
danger.
In this article we aim to verify the hypothesis that international cooperation in
criminal matters will strongly rely on the national design of the regulation and
enforcement of environmental law (incriminations, authorities, powers). Second, if
this is the case, does it create particular problems that undermine the effectiveness
of environmental protection through criminal law in this field?
For answering these questions we propose to analyse, first, the relationship
between the international environmental regulation and the international
enforcement obligations. Second, we have to verify whether and to which extent
the international norms on judicial cooperation in criminal matters relate to
environmental enforcement. Finally, we will conclude with some
recommendations to remedy the particular problems.
2. International Environmental Policy and the (Criminal ) Enforcement
Dimension8
The UN Conference on Human Environment held in Stockholm in 1972
constitutes the awakening of the UN and its Member States to environmental
problems. Even though the Stockholm Declaration addressed the problem of
8 For a more detailed overview of UN environmental policy in relation to enforcement, see
EFFACE, International Environmental Law and Environmental Crime: An Introduction. Work
Package 2 on Instruments, Actors and Institutions, 2015.
International cooperation in the investigation and prosecution … 131
domestic and transnational pollution, it did not qualify it as a possible
environmental crime but merely as a concern that States had to face through
cooperative action. On this basis the Brundtland Report9, the Rio Declaration,
Agenda 21, the Johannesburg Declaration on Sustainable Development, the
Johannesburg Plan of Implementation and the Rio+20 Declaration have laid down
the principles of international environmental law and have developed several
multilateral environmental agreements (MEAs) such as, for instance, the
MARPOL, BASEL and CITES Conventions. The International Convention for the
Prevention of Pollution from Ships (1973) as modified by the Protocol of 1978
(MARPOL 73/78) 10 has as its objective to preserve the marine environment in an
attempt to completely eliminate pollution by oil and other harmful substances and
to minimize the accidental spillage of such substances. It does not contain criminal
law obligations. The Basel Convention on the control of transboundary movements
of hazardous wastes and their disposal (1989, entered into force in 1992)11 has as its
key objectives to minimize the generation of hazardous waste and hazardous
recyclable materials; to ensure they are disposed in an environmentally sound
manner and as close to the source of generation as possible; and to minimize the
international movement of hazardous waste and hazardous recyclable materials.
The Convention is one of the few environmental treaties to define a prohibited
activity as “criminal” even though the wording of Art. 4 does not impose a clear
obligation to make illegal trafficking criminal, as it simply says that parties
“consider” it to be criminal (para. 3) and requires each Party to take appropriate
legal, administrative and other measures to implement and enforce the provisions
of this Convention, including measures to prevent and punish conduct in
contravention of the Convention (para. 4). CITES does contain penal provisions in
Article 8(1), but they are very limited and do not contain specific obligations as to
the constitutive elements of the incriminations, penalties or jurisdiction clauses:
“1. The Parties shall take appropriate measures to enforce the provisions of the
present Convention and to prohibit trade in specimens in violation thereof. These
shall include measures:
(a) to penalize trade in, or possession of, such specimens, or both; and
(b) to provide for the confiscation or return to the State of export of such
specimens.”
9 The Brundlant Report: Our Common Future, 1987, http://www.un-documents.net/wced-
ocf.htm.
10 http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/International-
Convention-for-the-Prevention-of-Pollution-from-Ships-(MARPOL).aspx.
11 United Nations, Treaty Series, vol. 1673, p. 57.
132 JOHN A.E. VERVAELE
The other relevant international convention for our topic is the International
Tropical Timber Agreement (ITTA, 2006) that aims to promote the conservation
and sustainable management, use of and trade in tropical forest resources through
the forum of the International Tropical Timber Organization (ITTO). As with other
international environmental agreements, there are no criminal sanctions provided
for in the ITTA instrument, and little is mentioned beyond a general objective:
‘Strengthening the capacity of members to improve forest law enforcement and
governance, and address illegal logging and related trade in tropical lumber.’ The
EU, a party to the ITTO, elaborated in regulation 995/201012 further obligations for
operators who place timber and timber products on the market, including penalty
obligations in Art. 19; however without imposing criminal penalties and less the
type and level thereof:
“1. The Member States shall lay down the rules on penalties applicable to
infringements of the provisions of this Regulation and shall take all measures
necessary to ensure that they are implemented. 2. The penalties provided for must
be effective, proportionate and dissuasive.”
We can thus easily conclude that the international conventions on the
protection of the environment do not include a set of penal provisions that really
guide the national legislator as to the choice of incriminations and their content.
States thus have enormous discretion when it comes to enacting offences in this
field.
However, the UN has recently become increasingly aware of the importance of
the criminal law dimension as part of a comprehensive enforcement strategy. In its
Montevideo IV for the Development and Periodic Review of Environmental Law13
in 2009, the UNEP elaborates an intra-disciplinary approach, extending from
environmental self-regulation and compliance to human rights and security issues.
Under the heading of the effectiveness of environmental law and implementation,
compliance and enforcement the document points under (j) at “Evaluate and, as
appropriate, promote the wider use of criminal and administrative law in the
enforcement of domestic and national environmental law” as one of the policy
priorities. The execution of Montevideo IV has been delegated to the new Division
of Environmental Law and Conventions (DELC). It is within DELC that
transnational criminal activities are defined as a central problem for the effective
implementation, compliance with and enforcement of environmental law,
including MEAs. Law enforcement cooperation to combat transnational crimes
faces obstacles because this relatively new category of crime typically lacks
common understandings and approaches between and among States.
12 Regulation 995/2010 of 20 October 2010.
13 http://www.unep.org/delc/Portals/119/MontevideoIV.pdf .
International cooperation in the investigation and prosecution … 133
The real game changer has however been the UN Convention on
Transnational Crime (UNTOC 2000). Although environmental crimes are not
explicitly mentioned in the UNTOC preparatory work, it was noted that
environmental crimes had evolved into organized crime.14 That was fairly late, as
for instance Interpol had already formed an Environmental Crimes Committee in
1991 to study emerging patterns of serious and organized crime in environmental
law enforcement. The UNODC has been the main actor in the interlink between
organized crime and environmental enforcement. In the 2012 UNODC Digest of
Organized Crime Cases15 specific attention is given to environmental crimes, as the
Digest contains cases of illicit logging in the Amazon Rainforest. The Digest also
pays attention to investigative techniques such as geo-intelligence and tracking
and tracing to tackle transnational organized crimes such as the trafficking of forest
and mineral resources. Some experts in the UNODC advocate adopting an
approach that corresponds to the international norms applied to money
laundering, and have stressed the urgency of studying and adopting international
provisions for normative schemes for forest and mineral products similar to those
in force for financial proceeds.
The UNODC and DELC approach has however not led to a general criminal
justice policy on the protection of the environment through criminal law at the UN
level. This is the reason why the International Institute of Higher Studies in
Criminal Sciences (ISISC)16 and the Association International de Droit Pénal
(AIDP)17 elaborated a statement on “The protection of the environment through
criminal law”18 with the aim of enhancing the role of criminal law in the protection
of the environment and the development of related international criminal law
norms within the Twelfth United Nations Congress on Crime Prevention and
Criminal Justice held in Salvador, Brazil (12-19 April 2010).19 In this document it is
clearly spelled out that the lack of criminal jurisdiction provisions in international
environmental conventions is problematic. Equally lacking is a regulation of ne bis
in idem protection in this conventions. The result is that we face examples of
inactive states (and thus impunity) and the concurring use of jurisdictions in some
cases. The document also contains an analysis from the point of view of
international cooperation in criminal matters. Because of the lack of any
14 Zimmermann, M., ‘The Black Market for Wildlife: Combating Transnational Organized Crime
in the Illegal Wildlife Trade’, Vanderbilt Journal of Transnational Law 36 (1), 2003.
15 https://www.unodc.org/unodc/en/organized-crime/digest-of-organized-crime-cases.html .
16 http://www.isisc.org/.
17 http://www.penal.org/en.
18 A/CONF.213/NGO/10, http://www.isisc.org/dms/images/pdf/Activity%20Report%2020
10%20POST-CDA.pdf.
19 Salvador Declaration on Comprehensive Strategies for Global Challenges: Crime Prevention
and Criminal Justice Systems and Their Development in a Changing World,” doc. A/CONF.213/18,
op. para. 14.
134 JOHN A.E. VERVAELE
international harmonization of environmental offences the double criminality
principle largely jeopardizes the chances of ample and effective legal cooperation
to be provided within the scope of application of existing multilateral and bilateral
treaties on extradition and mutual assistance or on the basis of domestic law. The
document contains a recommendation to introduce in the Mutual Environmental
Conventions 1/ obligations on incriminations; 2/ general provisions and
obligations on mutual legal assistance and extradition and 3/ exploring the
possibilities to include specific provisions on joint investigation teams, controlled
delivery and international cooperation in tracing, seizing and confiscating
instrumentalities and the proceeds of crime. Unfortunately the diplomatic level has
dealt only marginally with the whole topic of environmental protection through
criminal law.
We can thus conclude that the international environmental policy has been
very active at the regulatory level, but without integrating the criminal
enforcement dimension in its policy circle. The only recent exception is the
interlink between organized crime and environmental crimes, but even there the
policy interest is much more at a practical level (see point 3.) than at the level of
regulatory enforcement. In other words, it is the organized crime dimension (and
related corruption) that triggers the new interest in the enforcement of
environmental protection through criminal law, and thus very much steered from
UNODC. The broader perspective of the criminal law enforcement of
environmental law is left to the discretion of the Member States20, with the result
that we have a very divergent picture at the domestic level, both when it comes to
the substantive criminal law (the design and reach of incriminations)21 as well as
criminal law which is too procedural (authorities and powers)22.
As stated the only exception is the Convention on the Protection of
Environment through Criminal Law of the Council of Europe of 1998,23 which was
opened for signature in Strasbourg on 4 November 1998. The Convention never
entered into force due to the lack of the necessary ratifications. Nevertheless, it
should be underlined that while the “paucity of international environmental
criminal legislation” cannot be neglected, the Convention demonstrates the
relevance of the issue of the fight against environmental crime at the international
20 For a general overview of the related problems see the excellent study by Angus Nurse,
Policing Wildlife, Perspectives on the Enforcement of Wildlife Legislation, Palgrave Macmillan,
Hampshire, 2015.
21 For an overview of the fragmented and divergent picture for the EU countries see European
Parliament, DG for Internal Policies. Study on Wildlife Crime, IP/A/ENVI/2015-10, March 2016.
22 For an overview of the fragmented and divergent picture for the EU countries see Eurojust,
Strategic Project on Environmental Crime. Report, The Hague, 2014.
23 European Treaty Series, No 172.
International cooperation in the investigation and prosecution … 135
(regional) level. The Convention provides for legislative obligations concerning
substantive criminal law and procedural criminal law. In particular, with regard to
substantive criminal law the Convention typifies intentional and negligent offences
and is thus based on an ultima ratio approach24; the sanctions for these offences
shall include imprisonment and pecuniary sanctions and may include
reinstatement of the environment and confiscation measures. Corporate liability
shall also be enabled, but the choice as to administrative or criminal liability is left
to the states. As far as jurisdiction is concerned, the Convention foresees the
territorial, flag, national and aut dedere aut judicare principles. Based on this each
Party shall adopt such appropriate measures as may be necessary to establish
jurisdiction over a criminal offence established in accordance with this Convention,
in cases where an alleged offender is present in its territory and it does not
extradite him to another Party after a request for extradition (Art. 5(2)). The
Convention also stresses both national judicial cooperation and international
judicial cooperation. Art. 10 deals with national cooperation and stipulates that
each Party shall adopt such appropriate measures as may be necessary to ensure
that the authorities responsible for environmental protection cooperate with the
authorities responsible for investigating and prosecuting criminal offences and this
in the area of information exchange and investigation. Art. 12 deals with
international cooperation and stipulates that the Parties shall afford each other, in
accordance with the provisions of relevant international instruments on
international cooperation in criminal matters and with their domestic law, the
widest measure of cooperation in investigations and judicial proceedings relating
to criminal offences established in accordance with this Convention. This is as such
not a real breakthrough as the problems related to international judicial
cooperation (such as double criminality) are not resolved by a simple reference.
The Convention also does not refer to specific transnational environmental cases
such as, for instance, transborder pollution or trafficking offences.
3. International Judicial Cooperation and Environmental Enforcement
International judicial cooperation or mutual legal assistance in criminal
matters (MLA) is about cooperation between judicial authorities, the authorities
that have competence to investigate, prosecute and adjudicate in criminal
matters25. It does not include, in principle, mutual assistance between
24 This is evident both from the selection of the types of conduct to be criminally punished and in
the Preamble, where it is claimed that “whilst the prevention of the impairment of the environment
must be achieved primarily through other measures, criminal law has an important part to play in
protecting the environment”.
25 J.A.E.Vervaele, Mutual legal assistance in criminal matters to control (transnational)
criminality, in N. Boister & R. Currie (eds.), Routledge Handbook of Transnational Criminal Law, 2015,
London & New York: Routledge, p. 121-136.
136 JOHN A.E. VERVAELE
administrative authorities, even if they are dealing with administrative punitive
enforcement and can thus impose high financial penalties, withdraw permits and
close down corporate activity or exclude them from subsidy schemes. Considering
the fact that a great deal of enforcement in the wildlife chain is dependent upon
administrative regulation and administrative enforcement, this poses a serious
limitation. Some administrative enforcement agencies, such as customs authorities,
have strong international tools of administrative cooperation (however with
limited investigative powers), but they do not use them on a regular basis for the
enforcement of environmental matters. On the other hand, the specialized
environmental administrative agencies do not dispose of proper instruments of
administrative enforcement cooperation, as these have not been developed at the
international level for transnational environmental offences.
The competent judicial authorities for dealing with incoming or outgoing MLA
requests are as a rule defined at the national level, in line with the design of the
domestic administration of justice. The judicial assistance can be very wide,
including tools such as the extradition of suspects or convicted persons, the
gathering of evidence abroad (letters rogatory), the transfer of proceedings or
prisoners, and the execution of sanctions, including the confiscation of assets. The
tools of evidence gathering abroad vary from non-coercive measures, such as the
exchange of judicial information or voluntary interrogation of experts and
witnesses, to very intrusive measures, such as search and seizure, wire tapping,
controlled delivery and undercover surveillance of criminal organizations. These
intrusive measures are excluded from administrative mutual assistance.
In the Multilateral Environmental Agreements, there are no explicit references
to obligations in the field of judicial cooperation in criminal matters and MLA or
mutual administrative assistance. This is in stark contrast to the suppression
conventions, such as the UNTOC on organized crime and the UNCAC on
corruption, which do combine provisions on substantive criminalization, tools of
judicial investigation and related obligations of judicial cooperation in criminal
matters. For instance, in the Basel Convention Art. 9 (5) it is stipulated that each
party shall introduce appropriate national legislation to prevent and punish illegal
trafficking and parties shall cooperate with a view to achieving this objective. A
specific Art. 10 on cooperation is included, but judicial cooperation in criminal
matters is not even mentioned.
The problem of the interlink between international environmental regulation
and judicial cooperation in criminal matters was already identified more than 20
years ago. In 1993 an ad-hoc Group of Experts delivered at the UN level26 a Report
26 Presented at an UN meeting, held at Vienna from 5 to 10 December 1993. No.:
E/CN.15/1994/4/Add.2.annexe.
International cooperation in the investigation and prosecution … 137
on more effective forms of international cooperation against transnational crime,
including environmental crime. It is possibly a telling factor that neither the UN
databases in Vienna, nor the Max Planck Institute for Foreign and International
Criminal Law in Freiburg seem to have a copy of this Report.
Does the lacking interlink mean that the judicial criminal cooperation against
transnational environmental crimes is non-existent? The UNTOC, adopted in 2000,
consolidates the developments made in MLA in the last couple of decades. Thanks
to the increasing efforts of the international community to control transnational
crime, MLA has become a pivotal issue of global governance and part of
transnational criminal justice. It does not replace existing or future bilateral or
multilateral treaties, but complements them. It imposes broad MLA obligations in
relation to the investigation and prosecution of transnational offences and the
related freezing, seizure and confiscation of criminal proceeds. These are
elaborated in the 30 paragraphs of Article 18. MLA must also be afforded where
the requests relate to legal persons that are criminally liable in the requesting state
only. Article 18(3) lists the investigative acts and purposes for which MLA may be
requested under the duty to cooperate. The UNTOC also includes a spontaneous
exchange of information in Article 18(4). So, theoretically, these obligations can
also apply to transnational environmental offences, subject to the conditions that
they qualify as serious offences committed by organized crime groups that do have
a transnational dimension.
This brings us directly to a serious problem of a second interlink, namely the one
between environmental crimes and organized crime. First, even when committed by
organized crime groups national enforcement authorities have difficulty in many
cases in identifying the local players in the production and distribution chain of
wildlife and forest business as belonging to organized crime. Moreover, many
organized environmental crimes are non-conventional forms of organized crime. A
large part of the conduct is covered by administrative authorizations and permits.
This is certainly the case for (illegal) mining but also for trafficking in waste and flora
and fauna. The product as such is not illegal and the organizations as such are not
underground operators. The definition and scope of legality may thus depend to a
large extent on governmental policies and administrative regulations that can or
cannot be part of an international regulatory policy. Second, many environmental
trafficking offences are not part of organized crime schemes and thus do not qualify
for the UNTOC-related MLA potential. Third, in all scenarios the transnational
enforcement of environmental crimes cannot be limited to the classic instruments of
judicial cooperation and do need a set of cooperation instruments in the
administrative sphere and in the proactive-anticipative criminal sphere, both of
which are not regulated by UNTOC, as there are:
Administrative monitoring of the production and distribution chain (from
source to markets);
138 JOHN A.E. VERVAELE
Law enforcement and information sharing;
Intelligence gathering at a proactive stage (including geo-intelligence);
The involvement of private actors in the investigations;
UNTOC only offers the possibility of setting up joint investigation teams in
which both administrative and judicial authorities could participate under the lead
of a judicial competent authority. UNTOC has however no answer to the
cooperation between the myriad of administrative and judicial agencies with
different mandates, objectives, powers, investigative techniques and procedures
for enforcing environmental rules and standards and to the problems of the
conflict of jurisdictions and related potential ne bis in idem violations.
In the Criminal justice assessment toolkit of UNODC of 200627 a special part is
dedicated to international cooperation under the heading of cross-cutting issues.
Besides the classic instruments on judicial cooperation (extradition, mutual legal
assistance, the transfer of proceedings, etc.) the text deals with a whole set of
substantive fields of criminal law from the angle of the specific needs and
challenges of international judicial cooperation. It will come as no surprise that
classic fields of transnational law such as terrorism, organized crime, human
trafficking, the smuggling of migrants, the smuggling of organs, corruption, and
money laundering pass the review, as they are also at the core of the modern UN
suppression conventions, such as the UNTOC and UNCAC. It is possibly
something of a a surprise that transnational environmental crimes are not at all
mentioned in the document, as they are a field of activity that is often of interest to
organized crime28.
However, even if we would add to the UNTOC as a new protocol dealing with
transnational environmental crimes, it would be a serious mistake to reduce the
solution to the organized crime paradigm only. Just as important is the interaction
between administrative and judicial investigations at a transnational level.
Although there is thus a serious regulatory problem in the area of judicial
cooperation in criminal environmental matters, it must be said that a great deal of
activity has been deployed in the field of administrative and judicial practice in the
field of wildlife crimes. In 2010 the International Consortium on Combating
Wildlife Crime (ICCWC) was established and it aims at bringing coordinated
support for governments, national wildlife and forest law enforcement agencies
and sub-regional networks. ICCWC29 is the collaborative effort of five
27 https://www.unodc.org/unodc/en/justice-and-prison-reform/Criminal-Justice-Toolkit.html.
28 UNODC, Transnational Organized Crime in the Fishing Industry, Vienna: United Nations, 2011.
29 https://cites.org/eng/prog/iccwc.php.
International cooperation in the investigation and prosecution … 139
intergovernmental organizations working to bring coordinated support for the
national wildlife law enforcement agencies and the sub-regional and regional
networks that, on a daily basis, act in defence of natural resources. The ICCWC
partners are the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) Secretariat, INTERPOL, the United Nations Office on
Drugs and Crime, the World Bank and the World Customs Organization. They
have elaborated one of the most remarkable soft law instruments to combat
wildlife crime, the Wildlife and Forest Crime Analytic Toolkit.30 It provides a
conceptual map and the coordinates to deal with international and domestic laws
and the problems related with practitioners. It was offered to assist government
officials in wildlife and forestry administration, and customs and other relevant
enforcement agencies to conduct a comprehensive analysis of possible means and
related to the protection and monitoring of wildlife and forest products. It is an
important reference to understand how organized environmental crime is
comprehended in the wider concept of environmental crime. It is organized into
five parts, dealing with 1/ wildlife offences and related offences (organized crime,
corruption and money laundering) from an international and domestic
perspective; 2/ law enforcement tools related to enforcement agencies, staffing,
intelligence, investigations, border control and customs, international cooperation,
technical assistance and aid, witness and victim protection, and the accountability
and integrity of law enforcers; 3/ prosecutorial and judicial capacities to respond
to wildlife and forest crime, including an analysis of the mandate, structure and
processes of prosecution services and judicial organs, sentencing issues,
international judicial cooperation and victim compensation; 4/ factors that drive
wildlife and forest offences and the effectiveness of preventive interventions,
including the motives of the actors involved, different uses of wildlife and forest
products, and natural resource management systems and other preventive
mechanisms; 5/ availability, collection, analysis and examination of data and other
information relevant to wildlife and forest crime.
In March 2012, Interpol and UNEP convened the first International Chiefs of
Environmental Compliance and Enforcement Summit, where delegates expressed
concern about the existence and operation of transnational criminal networks
engaged in environmental crime. These criminal operations were initially
identified as specialized smuggling activities dealing with timber and CITES-
protected species, but were extended to include black markets in ozone-depleting
substances (ODS) and other prohibited chemicals, illicit transboundary movements
of toxic or hazardous wastes, and even illegal, unregulated, and unreported
fishing. Typically, all such crimes are in violation of both multi-lateral
environmental agreements and the domestic legislation that implements them.
30 https://www.unodc.org/documents/Wildlife/Toolkit_e.pdf .
140 JOHN A.E. VERVAELE
Interpol and UNEP label them clearly as ‘transnational environmental crimes.’ In
2012 Interpol also created the Environmental Compliance and Enforcement
Committee (ECEC)31 that brings together senior officials and decision makers from
all 190 Interpol member countries to provide strategic advice on relevant issues.
Within the ECEC the Interpol Wildlife Crime Working Group was established that
initiates and leads a number of projects to combat the poaching, trafficking, or
possession of legally protected flora and fauna. Thanks to all of these efforts
Interpol could publish in 2015 an impressive Global Directory of Environmental
Enforcement Networks.
Also at the EU level we see increasing activity at the practical cooperation
level. In November 2013 EUROPOL presented its specific Threat Assessment 2013
on Environmental Crime in the EU32 as an addition to the conclusions of the
2013-2017 EU Policy Cycle for Organized and Serious International Crime and to
the EU Organized and Serious Organized Crime Threat Assessment (SOTCA
2013). It this report, Europol identifies environmental crime as one of the emerging
threats requiring intensified monitoring and mentions that the most prominent
environmental crimes featuring the involvement of organized crime in the EU are
the trafficking in illicit waste and the trafficking in endangered species. In 2014
Eurojust published its Strategic Project on Environmental Crime Report33. In
2013-2016 the EU also funded EFFACE (European Union Action to Fight
Environmental Crime)34, in which 11 European research institutions, think thanks
and practitioners were involved.
We also see the shaping of networks for enforcement coordination and
coordination. The most important international network is the International
Network for Environmental Compliance and Enforcement (INECE)35, with a broad
range of members from governmental enforcement agencies to NGOs and
business. On the level of the EU, the networks are more restrictive in their
membership, each focusing on a different group of actors concerned with
environmental crime, for example the European Network for the Implementation
and Enforcement of Environmental Law (IMPEL)36 focusing on officials from
environmental ministries and agencies, the European Network for Environmental
31 http://www.interpol.int/Crime-areas/Environmental-crime/Environmental-Compliance-and-
Enforcement-Committee.
32 https://www.europol.europa.eu/content/threat-assessment-2013-environmental-crime-eu.
33 http://www.eurojust.europa.eu/doclibrary/eurojust- framework/casework/strategic%20pro
ject%20on%20environmental%20crime%20(october%202014)/environmental-crime- report_2014-11-21-
en.pdf.
34 http://efface.eu/.
35 http://inece.org/.
36 http://www.impel.eu/.
International cooperation in the investigation and prosecution … 141
Crime (EnviCrimeNet)37 on members of investigation services, the European
Network of Prosecutors for the Environment (ENPE)38 on prosecutors and the
European Union Forum of Judges for the Environment (EUFJE)39 for judges.
So, overall it seems that the enforcement and policy actors have taken the
problem from the bottom and tried to set up groups and networks for information
sharing, enforcement cooperation and even outreach with civil society.
4. Conclusions: streamlining the regulatory and enforcement chain
In this article we have aimed to verify the hypothesis that international
cooperation in criminal matters strongly relies on the national design of the
regulation and enforcement of environmental law (incriminations, authorities,
powers). Our analysis has definitely shown that international the environmental
law and international law on judicial cooperation in criminal matters have little
regulatory impact on the national legislative and practical reality. If public
international law enters the frame then it is only through its focus on organized
crime, which is not specifically designated for this a-typical form of organized
crime. This does not therefore mean as such that the regulatory standards of public
international law and the ones of judicial cooperation in criminal matters do not
matter, but it depends to a large extent on the proactive attitude of national
legislators and enforcers to use them.
Second, the relation between environmental crimes, serious human rights
violations and societal harm is not really perceived as a mandatory duty to protect
these interests and a duty for the state to investigate, prosecute and adjudicate
them. The result is that the law enforcement of serious environmental crimes is not
perceived as having high priority40. Even when investigated, few cases make it to
the courts and the sentencing is rather modest. When state or para-state actors are
involved the situation is even worse. This can be due to illegal or manipulated
permit procedures or to direct or indirect involvement in the offences through
commission or omission. Needless to say, all these particular problems undermine
the effectiveness of environmental protection through criminal law in this field. We
can clearly speak of a wide range of impunity and of the weak impact of criminal
justice on harm reduction.
What does this mean for the use of judicial cooperation in criminal matters
related to transnational environmental offences, especially in our case of wildlife
and forest offences?
37 http://envicrimenet.com/.
38 https://www.environmentalprosecutors.eu/.
39 http://www.eufje.org/index.php/en/.
40 European Parliament, DG internal policy, Study on Wildlife Crime, 2016,
http://www.europar l.europa.eu/RegData/etudes/STUD/2016/570008/IPOL_STU(2016)
570008_EN.pdf.
142 JOHN A.E. VERVAELE
First of all, at the domestic level we need a regulatory and enforcement policy
that takes into account all the relevant factors of law compliance. This ranges from
knowledge about root causes of deviance and the political economy of the field to
streamlining administrative procedures (permits, administrative monitoring),
interagency information sharing, interlinks between administrative and judicial
investigations, strengthening investigative capacities and public-private
partnerships.
Second, international cooperation should be a full part of this strategy, which
means that cooperation cannot be plugged in at only the stage of judicial crime
investigations. When dealing with environmental crimes that are strongly related
to global market economy chains it is important to have cooperation at all stages
(from production sources to consumption markets or to put it in agricultural terms,
from stable to table). This means that administrative and judicial cooperation need
to be intertwined and that some tools have to be used from the very beginning. It is
recommended for states to develop a proactive criminal policy strategy in order to
increase intelligence-led policing related to potential serious violations of
ecosystems. For instance, the use of geo-intelligence should be used as an
administrative monitoring tool and in case of suspicion also as an investigatory
tool. Information positions have to be built up at the administrative stage in order
to detect, in good time, potential serious criminal deviant behaviour. Data from the
EU-TWIX database provides, for instance, a good overview of the trade routes for
goods but their usefulness for research and enforcement could be further enhanced
by reorganizing some parts of the data collection. A good example of this
integrated enforcement approach can be found in the Protocol to Eliminate Illicit
Trade in Tobacco Products, negotiated in the WHO Framework Convention on
Tobacco Control (FCTC) and opened for ratification in 201341. In order to prevent
the illegal trade, the Protocol aims to secure the supply chain of tobacco products it
imposes a whole set of administrative obligations, including licensing, due
diligence obligations, tracking and tracing systems record-keeping, etc. To address
the illicit trade, the Protocol establishes unlawful conduct, including offences and
addresses liability and seizure payments, as well as the disposal of confiscated
products. Interesting are the requirement to boost international cooperation. They
make a clear distinction between general information sharing and enforcement
information sharing. Specific cooperation duties are also included for law
enforcement cooperation, mutual administrative assistance and mutual legal
assistance, in order to cope with all phases of the necessary cooperation and thus
guarantee a full comprehensive enforcement cooperation scheme.
41 As of January 2016, 179 countries plus the European Union have become Parties to the
FCTC. Of these 180 Parties, 54 signed the Protocol between 10 January 2013 and 9 January
2014, during which period the Protocol was open for signature. As of January 2016, 13 Parties
to the Convention are Parties to the Protocol. The Protocol requires 40 Parties to enter into
force.
International cooperation in the investigation and prosecution … 143
Third, this new approach to international assistance practice needs, of course,
also a professional culture of international cooperation, meaning the inclination to
expand both the analysis and the investigative approach of a case to cover its
transnational dimensions and to devote operational resources to coordination with
foreign authorities. The attitude to compound the investigation to the domestic
dimension, based on legal jurisdiction constraints or the practical non-use of
jurisdiction (‘your crime is not my crime’) is of course denying the links between
countries of origin, destination countries and major illegal trade routes and thus
leading to an enforcement deficit, partial impunity and little harm reduction. The
way to overcome this is by: 1/ integrating international assistance at all levels into
the environmental policy; 2/ setting up specialized units for environmental
administrative and judicial enforcement besides or within the mainstream law
enforcement agencies and judicial authorities and 3/elaborating public-private
partnerships with civil society (specialized NGOs, reliable business actors), both in
the area of self-compliance as well as in the area of enforcement.
At the international level a great deal can and has still to be done. Concerning
the regulatory framework, international organizations could better interlink
environmental enforcement with tools of judicial cooperation. This could be done
through specific suppression treaties or through an annex to UNTOC. At the level
of the specialized bodies dealing with multilateral environmental agreements
attention could be paid to elaborating specific international assistance tools that
extend from information sharing and monitoring to administrative and judicial
investigations in order to close the gaps in the enforcement chain. It is also worth
thinking about formal enforcement networks at a regional and/or global level in
order to tackle serious transnational violations.
These are all steps aimed at approving the legislative and judicial practice of
environmental protection of the commons and thus of the life quality and life
preservation of us all. For serious violations that also constitute violations of
human rights they will contribute to realizing the positive duty of the state to
investigate, prosecute and adjudicate them under a shared scheme of responsibility
instead of the unilateral sovereign approach.