Crimes that affect the environment - the landscape of criminalisation

On 17 May, the UN Office on Drugs and Crime (UNODC) launched the first part of its groundbreaking ‘Global Analysis on Crimes that Affect the Environment’ (the Global Analysis) at a side event co-hosted by Germany and France at the 33rd Session of the UN Commission on Crime Prevention and Criminal Justice (CCPCJ).

It was my great pleasure to be invited to join the side event and offer comments on the Global Analysis. In doing so, I was not wearing any particular hat; rather I was speaking as someone who has spent their entire career working across a wide spectrum of environmental issues.

Some time back, I was CEO of the Department for Environment, Heritage and Aboriginal Affairs in my home State in Australia. We had responsibility for six of the nine environmental areas covered by the Global Analysis. The scale and complexity of the issues were significant at the sub-national level in just one country, so it is impressive to see how the UNODC research team managed to analyse the situation across 193 countries and from global conventions to sub-national legislation. 

In doing so, UNODC has produced a clear, easily digestible, and logical analysis. I enjoyed reading it and recommend it to you. Kudos to all involved, and most notably the authors and researchers. This is critically important work. We will only be able to achieve our global biodiversity or climate targets if we can effectively tackle crimes that affect the environment. 

The Global Analysis covers nine environmental areas: deforestation and logging, mining, air pollution, noise pollution, soil pollution, water pollution, fishing, waste, and wildlife, and it shows there is a large body of law at the global, regional, national and sub-national levels on crimes that affect the environment, and that is a positive thing. However, these laws, be they international conventions, or national or sub-national legislation, have evolved ad hoc over time. The landscape is a rather complex one. 

The motivation for creating these laws may not always have been a concern for the environment. For example, some legislation will have been created to regulate the lawful exploitation of natural resources and the royalties that flow to governments. However, in 2024, there is one common thread that binds them all together, namely, all of these laws are linked to crimes that affect the environment. 

We should also remind ourselves that not all behaviour that affects the environment is illegal. Many activities that have a serious impact on the environment are quite lawful, either in their own right or when conducted following an authorisation. This applies to all of us, both natural and legal. 

What is considered lawful and unlawful has evolved, and will continue to do so. If we had met in this room 20 years ago, we would all have an ashtray in front of us and be smoking away. In the region of Australia where I grew up a lease over rural land carried a condition obliging the holder the clear it of native vegetation, failing which they would lose the lease. But in the 1980’s that all changed. All land clearance was prohibited under threat of criminal and civil sanctions. So we moved from the practice of clearance of native vegetation being legal, in fact encouraged, to it becoming illegal. We can expect this evolution of legal and illegal to further evolve over the coming decades. 

The Global Analysis takes us from global to subnational levels, which is great. There are an estimated 1,400 multilateral environmental agreements. Yet this Analysis finds that only two of them penalise a failure to adhere to commitments. 

These are the ‘Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal’ (the Basel Convention), which requires Parties to criminalize violations of its provisions, and the ‘Convention on International Trade in Endangered Species of Wild Fauna and Flora’ (CITES), which requires Parties to penalise certain violations of its provisions – noting that CITES does not specifically require criminalisation.

Based on the findings of the Global Analysis, there appears to be a clear causal connection between the provisions in the Basel Convention and CITES and the high number of States that have criminalised waste and wildlife violations. These are the top two environmental areas where States have legislated to criminalise activities that affect the environment. 

However, there is one further aspect that would be interesting to explore: the impact the first UN General Assembly (UNGA) Resolution on Tackling Illicit Wildlife Trafficking in 2015 has had. This Resolution included a paragraph that called upon Member States to make illicit trafficking in protected species of wild fauna and flora involving organized criminal groups a serious crime, in accordance with the United Nations Convention against Transnational Organized Crime (UNTOC). 

All five UNGA Resolutions following this 2015 Resolution included the same call to Member States. I would be curious to see if we saw any upswing in States criminalising wildlife trafficking and making it a serious crime following the adoption of the 2015 Resolution, which, anecdotally, I suspect we will. 

In this brief commentary, I cannot go into much detail on the many other really fascinating aspects of the Global Analysis. It has, however, sparked my curiosity and thinking on the subject matter. In the space available, I’ll very briefly refer to some aspects of the Global Analysis that stood out to me:

1. The threshold for a crime to be treated as a serious crime under the UNTOC of at least four years imprisonment or more seems to be a rather clumsy and outdated trigger. In 2024 States are increasingly using a full spectrum of penalties available to them; including, community service orders, compensation, restitution, restoration, fines, restorative justice, and imprisonment. If a crime seriously impacts the environment, it should be accepted as a serious crime. I know this threshold is hardwired into the UNTOC but it does seem quite dated in the 2024 context. 

2. The definition of wildlife crime is getting unnecessarily confused, particularly in the UN World Wildlife Crime Report 2024. Looked at generically, wildlife includes all wild fauna, flora and fungi – animals, plants and fungi. A wild fish swimming in the ocean is part of its ecosystem, like a tree growing in a forest, or an elephant migrating across the savanna. Yet we artificially separate fishing and logging from other forms of wildlife. There is no good reason for doing so – we should keep them all under the one umbrella. This unnecessary disaggregation becomes even more confusing when one sees the increasing number of marine and timber species listed under CITES. 

3. Illegal logging and fishing are two of the most destructive forms of wildlife crime. Yet the Global Analysis shows that illegal fishing and logging have the lowest number of national laws that extend legal liability to legal persons. How is this so? It should be the other way around! 

6. There is limited scope for confiscating the proceeds of crime.

7. The Global Analysis also shows limited scope for the courts to order compensation or restoration for crimes that affect the environment. This is of particular concern as the objective of the exercise here is not only to punish the offender, but to fix the harm caused to the environment. I spent nearly 10 years in private legal practice before heading off to do other things. I would have clients ask me what the fine would be if they just went ahead and did what they wanted to do – to ask for forgiveness rather than permission. I would advise them of the fine, which they could manage, but their attitude quickly changed when I said the Court could also order them to put everything back the way it was.

8. Where are fines, as well as the proceeds of selling seized and confiscated contraband, paid into? Are they paid into treasury or to the agencies responsible for environmental management and law enforcement? Treasuries are notorious for not wanting to allow for any hypothecated funds, but it could be a valuable source of revenue for under funded agencies. 

9. Are there good examples of penalties being linked to the scale of the harm caused to the environment. For example, is there a good matrix that a State(s) has developed to measure the scale, nature and consequences of the harm caused, and which can be applied to the imposition of an appropriate penalty. 

10. Are states using restorative justice for crimes that affect the environment? The environment is not the only victim, as people can suffer direct and indirect environmental and health consequences, and are States deploying behavioural tools?

11. What is the standard of proof being applied to these crimes? At another side event hosted by France and others at the CCPCJ on legislation and crimes that affect the environment a panellist from Sri Lanka was advocating for the use of strict liability offences, noting that it is easier to succeed with a prosecution in such cases. It would be interesting to know the extent to which States are making crimes against the environment strict liability offences. 

11. Are states making use of specialised investigative units, or prosecutors, or establishing specialised environmental courts, as we have seen in some jurisdictions? What impact does this have on the number of prosecutions, the success rate, and the severity of the penalties imposed?

I could say much more, as this Global Analysis has really sparked my interest, but this is a commentary, not an in-depth review. 

Kudos to the authors and researchers of the Global Analysis, and a big vote of thanks to Germany and France for supporting this critically important, ground breaking work. It has given us an excellent platform to advance this evolving area of work, which is essential if we meet our agreed biodiversity and climate targets. 

illuminem Voices is a democratic space presenting the thoughts and opinions of leading Sustainability & Energy writers, their opinions do not necessarily represent those of illuminem.