by Prof. dr. John A.E. Vervaele & dr. Daan P. van Uhm
In the last decades, it has become increasingly clear that the protection of the environment is not only about a specific nature-related interest, but also about the systemic preservation of the commons of nature, which is essential for the life conditions of human beings and flora and fauna. The trade in endangered species puts not only their survival at risk; it deprives humanity of natural resources for their own survival and damages the biodiversity of planet earth. Emissions of greenhouse gases impact global warming and increase the sea levels, but also cause new phenomena such as El Niño in the Americas. These environmental harms are not land or border-related; their complex effects threaten all life on earth. Indeed, the exploitation of natural resources has become a global social problem and, thus, needs to be anticipated in social and scientific thinking.
Despite the transnational and intergenerational character of the harmful activities against the environment such as ozone depletion, pollution of the seas, deforestation and defaunation, they have only recently been considered to be criminal or at least seriously harmful. This illustrates the social construction of crimes and harms: many of these activities are still not criminalized even though the harm is overarching. In most legal frameworks, ‘nature’ is referred to as a state property, which is to benefit growth of the gross domestic product instead of an essential life condition. Such an approach to nature is generally strongly rooted in anthropocentric and materialistic worldviews. As a consequence, many legal frameworks ignore these environmental harmful activities that may jeopardize the future of the world.
Countries that do criminalize environmental offences consider them mostly to be regulatory offences, malum prohibitum, which means that coercive measures are limited and sanctions are low. Nevertheless, some countries did include them in the criminal codes as malum in se. However, their enforcement practice is still not in line with their mandatory duty to investigate, prosecute and adjudicate them. In this respect, some environmental criminality relates to the 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 to be exploited. In other words, there is a mix of criminal offences, human rights violations and societal harm at stake. Some of the violations could be qualified already today as war crimes under the Rome Statute of the International Criminal Court. When armed conflict activities cause extensive damage, the destruction or loss of ecosystems in a given territory can mean that the peaceful enjoyment of the inhabitants of that territory has been severely diminished.
The urgent need of criminal law protection of the environment leads to a discussion on the international regulatory framework for the protection of the environment and on the criminal enforcement dimension of it. First, the international community has been very active in regulatory protection of the environment, but without integrating the criminal enforcement dimension in its policy circle. The Convention on the Protection of the Environment through Criminal Law of the Council of Europe in 1998 is one of the rare exceptions, but the Convention has – after near to 10 years – not yet entered into force due to of the absence of the necessary number of ratifications. States, thus, have large discretion to regulate and enforce these environmental offences. This results, however, in inactive states or states that provide for enforcement regimes that do not protect the environmental and human interests at stake in an optimal manner. Moreover, their enforcement is regularly dependent upon administrative regulation and enforcement, which means that criminal enforcement depends upon infringements of administrative licenses and license conditions.
Second, the international community has only recently focused on the interlink between environmental crime and organized crime, and related corruption and money laundering. This emphasis on the relation between environmental criminality and organized crime has, however, not led to a general criminal justice policy on the protection of the environment through criminal law at the UN level. In other words, it is the organized crime dimension that triggers the new interest in the enforcement of environmental protection through criminal law. The broader perspective of the criminal law enforcement of environmental law is left to the discretion of the Member States with the result that we have a very divergent picture at the domestic level, both when it comes to the design and reach of offences in substantive criminal law and the authorities and judicial powers in criminal procedure. Moreover, these authorities experience difficulties in many cases, whilst identifying environmental organized crime, because a large part of the crimes are covered by administrative authorizations and permits. In addition, many organized environmental crimes are non-conventional forms of organized crime. This is certainly the case for (illegal) mining but also for trafficking in waste and, flora and fauna. More specifically, the product as such is not always illegal and the organizations as such are regularly not underground operators. This strong interconnectivity between the underworld and upperworld is a real challenge for law enforcement authorities.
Third, there have been several calls to take an evolutionary leap forward by recognizing ‘ecocide’ as the missing fifth crime against peace or international core crime. As early as 1970, an international agreement to ban ecocide was proposed. Many environmental crimes are deemed as collateral damage or accidents. Consequentially, corporations could hide behind the defense that they were not aware of the illegality. The idea would be that nations as well as businesses would be legally bound to act before mass damage, destruction or ecosystem collapse occurs. Recently, a proposal for an international law of ecocide was submitted to the United Nations Law Commission. This law of ecocide should acknowledge human-caused environmental harm and degradation as a crime of strict liability. However, the natural environment is rarely defined or conceptualized as a collective victim, neither is it conceived in international convention or in the ICC Rome Statute as an autonomous international crime against peace yet.
Finally, environmental crimes, such as wildlife trafficking, consist regularly of a chain of offences at the origin (e.g. illegal looting and poaching), trade offences and offences at the destination (e.g. illegal sale and laundering) of the supply chain. This means that most of them have a transnational character and that judicial authorities will need mutual legal assistance in order to deal with evidential matters, extradition or confiscation of assets. Neither do the specialized conventions on judicial cooperation in criminal matters focus on environmental offences, nor do the domestic norms on judicial cooperation in criminal matters refer explicitly to transnational environmental enforcement. 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. Many environmental trafficking offences are not part of organized crime schemes and, thus, do not qualify for the UNTOC-related MLA potential. 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); law enforcement and information sharing; intelligence gathering at a proactive stage (including geo-intelligence) and the involvement of private actors in the investigations.
To conclude, in order to protect the environment through criminal law there is a substantial need for a more ecocentric approach to streamline the regulatory and enforcement chain in the policy cycle. The enforcement relies too strongly on the national design of the regulation and enforcement of environmental law (offences, authorities, powers). International 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 atypical form of organized crime. The only way forward is to consider environmental protection as an autonomous legal good of collective common interest that also deserves criminal law protection.
For further reading on the protections of these commons through criminal law, see the recently published issue ‘Protection of the Environment through Criminal Law’ of the International Review of Penal Law (Revue Internationale de Droit Pénal), to which the authors of these blog have contributed. See info at the website of MAKLU: http://www.maklu.be/makluengarant/BookDetails.aspx?ID=9789046608098
Dr. Daan van Uhm is Assistant Professor in Criminology at the Willem Pompe Institute for Criminal Law and Criminology.