The United Nations Convention Against Transnational Organized Crime – to which 190 states are signatories – is, as the title suggests – a commitment by countries to put in place measures to fight such crimes. Three protocols have been issued under it – against weapons, human trafficking and narcotics. For most countries, this convention is not automatically binding. The proponents of this new fourth protocol state in numerous webinars that this initiative will ‘strengthen the international criminal law framework’ and will ‘make it an offence to illegally traffic wildlife specimens’ (sic). Both statements either represent an ignorance of how international conventions actually apply to many countries (i.e. requiring further acts of parliament to put these conventions into practice), or they are deliberately misleading in an effort to convince the ignorant of the merits and strength of this initiative. It is surprising given the head of the Wildlife Justice Commission who advances this initiative and who once served as the head of the international relations department of the International Criminal Court (ICC) hasn’t corrected this misrepresentation.
‘International criminal law’ is a relatively young concept and for practical purposes, has little or no application for the vast majority of criminal courts. The ICC is NOT going to have a mandate over wildlife cases which may come as a surprise to the many conservationists who have naively put their weight behind this initiative. As for ‘making it a criminal offence’ – something the chair, John Scanlon and former secretariat of CITES said in a recent webinar with other leading conservationists such as Professor Lee White and the head of Born Free Foundation – it quite simply, will not. A criminal offence must state the conduct and the penalty and criminal offences must be legislated by sovereign states and not from Vienna or Geneva or New York. Nothing in the proposed protocol will introduce new offences or penalties that do not already exist in the countries most affected by wildlife crime, especially in Africa. Beyond legitimizing a patronizing extra-territorial application of foreign law, which in current practice led to illegal rendition of suspects from African countries to the USA instead of nurturing African justice systems, this silver-bullet of a protocol will not alter the legal landscape of wildlife crime where it matters. This protocol is not necessary for any meaningful reform of Africa’s national or regional legal instruments for tackling wildlife crime.
Such misleading statements, designed to raise momentum behind this initiative are dangerously distracting from the real challenges to fighting wildlife crime in a post Covid-19 world – the lack of resources put into a judicial, prosecution and law enforcement structures as whole. The conversation in conservation sectors regarding how to best tackle wildlife crime has largely been led by conservationists and not criminal lawyers who spend their days in the frontline of courtrooms. African criminal lawyers have advocated for change that relies on a holistic approach to criminal justice. These have been ignored in favour of quick wins and shiny outputs for donors. Short term gain that does nothing to alleviate the heavy burden that falls on African prosecutors and investigators to protect entire species without the requisite resources, tools and systems that would make the criminal justice system responsive to wildlife crime. The international community should spend its limited resources to address this rather than add a superfluous protocol which will not translate to any changes in court outcomes in Africa.
A final thought: Kenya was the first country to sign the United Nations Convention Against Corruption in 2003. In the last eighteen years we have passed a number of robust anti-corruption laws, established an anti-corruption body, set up anti-corruption specialist investigative and prosecutorial teams and even established an anti-corruption court. And yet Kenya remain resolutely near the bottom of Transparency International’s Corruption Index and this year the Kenyan President acknowledged that the country loses at least 2 billion KES (about 2 million USD) a day to corruption. The most shocking of all is the corruption involved in the procurement of PPEs in the middle of a raging global Covid-19 pandemic. If loss of human life is not enough of a deterrent against corruption despite the domestication of international framework against graft what makes us think that signing another protocol to UNTOC would equally “fix” illegal wildlife trade?
If the Kenyan government chooses to sign this fourth protocol, it will be a disgraceful form of virtue signaling. The problems that inhibit our fight against wildlife crime are deep and complex. Africa must stop looking to the West for solutions cooked up by saviours from afar who have no compulsion or shame at misrepresenting to the ignorant public just what a white elephant this fourth protocol really is.