Nguyen Hoang Ba Huy[1], Nguyen Xuan Hoa[2]
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| A Phayre’s leaf monkey__Photo: Nguyen Viet Anh/WCS VN |
Transnational wildlife crimes from Africa to Asia
Wildlife crimes have become increasingly transnational and been committed in an organized and sophisticated manner. Asia and Africa have become two hot spots for transnational wildlife crimes. According to the United Nations Office on Drugs and Crime (UNODC)’s World Wildlife Crime Report 2020[3], during the 2016-18 period, some 1,060 rhinos were illegally killed in Africa for 5.8 tons of rhino horns and around 5.1 tons of these were transported to Asia. At the same time, around 10,000 elephants were illegally killed in Africa for 105 tons of ivory, of which some 88 tons were transported to Asia.
In addition, at the end of 2021, an eight-week operation coordinated by the International Criminal Police Organization (INTERPOL) with the participation of 23 countries from Africa and Asia (including Vietnam) was conducted to combat wildlife crimes. According to this campaign’s reports, thousands of wildlife products were seized (1,202 ivory, 423 kg of pangolin scales, 50 rhino horns, and 1,336 other wildlife species on the CITES List) and around 100 suspects were identified across the 23 countries participating in the operation[4].
In the ASEAN region, wildlife trafficking is currently at a serious level[5]. The region has become a major consumption, supply and transit location for a global network of transnational wildlife criminals[6]. It is also reported that the region not only serves as a point of consumption but also as a supply and transit point for the global illegal wildlife trade (IWT) network with amphibians and reptiles to European countries; turtles and wrens to East Asia; and reptiles to America.
In Vietnam, transnational wildlife crimes are mainly related to IWT activities from Africa to Vietnam. Key trading routes from Africa to Vietnam include Mozambique to Vietnam and South Africa to Vietnam. Between 2012 and August 2021, the Wildlife Conservation Society (WCS) recorded 23 cases from Mozambique to Vietnam involving Vietnamese nationals. Ivory is the most trafficked wildlife product with 5,504 kg seized during the 2012-21 period. Besides ivory being the largest smuggled product between the two countries, rhino horns and big cats (lions and tigers) are also smuggled in large quantities. During the same period, WCS also recorded 28 cases from the South Africa carried out by Vietnamese nationals[7]. Rhino horns are the most trafficked wildlife product with 255 horns, 521.8 kg and at least 10 items of rhino horns seized[8]. Ivory and big cats (lions and tigers) are also major smuggled products between Vietnam and South Africa.
In addition, criminals have increasingly transported wildlife by sea from Africa, particularly Nigeria and Angola, to Vietnam in large volumes through limited and outdated screening and customs control systems compared to airways’ customs systems. Containers of wildlife on the illegal transport routes from Africa to Vietnam often arrive at seaports in Hai Phong, Da Nang, Vung Tau and Ho Chi Minh City and some other seaports whose staffs have limited information analysis skills and IWT risk management knowledge[9].
Mutual legal assistance in handling wildlife crime cases between Vietnam and foreign countries
Difficulties and challenges
Firstly, the response to mutual legal assistance (MLA) requests between Vietnam and the African countries is often delayed. Over the recent years, the response rate of MLA requests submitted by Vietnamese authorities has remained very low. Of 15 MLA requests from Vietnam, only six were responded. Most of these requests were sent to the African countries where IWT cases are widespread.
According to Article 148 of the 2015 Criminal Procedure Code (as revised in 2021) (the Criminal Procedure Code), upon the expiration of the law-specified time limit, the competent authority will temporarily suspend the settlement of denunciations, reports of crimes and recommendations for prosecution in wildlife crime cases if there are requests for information from foreign authorities but no results are achieved. Under Article 229 of the Criminal Procedure Code, the investigating body shall decide to temporarily suspend the investigation when the request for information from a foreign authority has not yet been received but the investigation time limit has expired. The delay in responding to wildlife crime-related requests from the African countries usually leads to temporary or permanent suspension of wildlife crime cases which affects the lawful rights and interests of involved individuals, agencies and organizations. According to the Department of International Cooperation and Mutual Legal Assistance in Criminal Matters of the Supreme People’s Procuracy (SPP) of Vietnam, during 2018-22, Vietnam sent 17 MLA requests and had only three requests responded. The number of MLA requests to the African countries is relatively high (8/17) but with zero response (0/8)[10].
Secondly, there are few bilateral MLA treaties with the African countries, due to differences in regulations and laws on MLA between Vietnam and those countries regarding procedures, implementation, duration, forms and competent authorities, leading to difficulties and time-consuming process in handling MLA requests[11]. Many African countries have not yet signed MLA treaties with Vietnam, resulting in drawbacks in adequately responding to Vietnam’s MLA requests. Due to the lack of an adequate legal basis, the coordination and keeping in touch with central agencies of foreign countries receiving MLA requests are mainly through diplomatic channels. Moreover, the sending of MLA request dossiers, supplementation of necessary information and updating of the settlement progress still encountered difficulties.
Final, the application of the dual crime principle would also be an obstacle for countries when implementing MLA requests for handling of wildlife crime cases for the fact that in some cases a certain behavior is regarded as against the criminal law in one country but is considered lawful in other countries.
Causes of difficulties and challenges
Firstly, the conclusion of MLA treaties between Vietnam and foreign countries is totally concerned but remains incomplete. For example, the MLA treaty between the ASEAN countries only addresses basic issues and is not specific enough. That’s why the parties to the treaty must rely on their national laws to reserve some articles or contents of the treaty[12].
Second, languages remain a major barrier between countries concluding an MLA treaty which is international in nature and requires in-charge officials to have in-depth knowledge of international law and proficient in foreign languages. Meanwhile, the system of professional translation agencies is still limited and not available with rare languages.
Third, MLA treaties concluded between Vietnam and foreign countries apply to many transnational crimes, including wildlife crimes. Therefore, it is not easy to apply them in wildlife crime cases, especially for developing MLA requests to identify the origin of wildlife or wildlife products trafficked and transported from foreign countries/territories into Vietnam.
Fourth, wildlife crime cases involving foreign elements usually require a lot of MLA activities between countries to identify the origin of wildlife, and time or place to handle wildlife crimes. However, in practice, the enforcement is very difficult because there is still no genuine willingness to cooperate between countries. In some cases, due to lack of a bilateral MLA treaty, wildlife crime cases handled and supported by diplomatic missions even lead to delays in crime investigation and handling. Many wildlife-related cases involving foreign elements have also been suspended due to the expiration of relevant time limits.
Fifth, differences in legal systems, particularly criminal procedures, legal concepts, provisions on political crimes and military crimes, etc., constitute an objective cause of difficulties in responding to MLA requests.
Last, some criminal procedure-conducting bodies are not clearly and fully aware of procedures in submitting MLA requests, leading to submissions through wrong channels and to wrong authorities.
Solutions to improve the effectiveness of mutual legal assistance in handling wildlife crime cases between Vietnam and foreign countries
Firstly, Vietnam should intensify the conclusion of MLA treaties, especially with the African countries for they are high-risk countries related to transnational organized wildlife crimes. A bilateral MLA treaty will be a binding legal document between the two signatories, acknowledging the rights and obligations of each party and specifying other important issues such as the competent authority(ies) to settle wildlife crime cases, procedures and grounds for refusing MLA requests, and methods of communication and exchange of information. Concluding more bilateral treaties is the main solution to bring long-term effects to MLA activities between countries.
Secondly, for bilateral MLA treaties concluded by Vietnam with general provisions concerning both civil and criminal matters, it is advisable to consider converting their contents into separate agreements to support legal searches and implementation related to criminal matters. At the same time, such would help determine the competence of the state agency(ies) of each party to MLA treaties and enhance their initiative in implementing MLA treaties in the settlement of wildlife-related cases.
Thirdly, it is necessary to revise the 2007 Law on Mutual Legal Assistance, considering separating the criminal provisions into a single law to support legal searches and implementation of MLA treaties, and clearly distinguishing the competence of the agency(ies) implementing MLA treaties from other agencies that also implement MLA treaties in other legal fields. At the same time, it is better to ensure the in-depth regulation and concretization of treaties to which Vietnam is a signatory. In terms of contents, in addition to the scope of MLA treaty stipulated in Article 17, it is necessary to consider additionally providing the application of measures to trace, seize, retain, disclose, confiscate and return assets, tools and equipment involved in crime commission, allowing persons conducting judicial proceedings of requesting parties to participate in certain activities during the implementation of MLA treaties in requested parties, taking testimony via video-conference, sending persons of requested parties to come to requesting parties to assist in the investigation or evidence collection, coordinating investigation activities, etc. In fact, these activities have been specified in bilateral and multilateral treaties in the field of criminal justice to which Vietnam is a signatory. Therefore, the scope of MLA treaties will be more in line with bilateral agreements that Vietnam has signed or acceded to. In addition, it is necessary to consider revising the grounds for refusal of MLA requests in the direction of distinguishing between cases of “compulsory” refusal and “optional” refusal in order to ensure compliance with treaties to which Vietnam is a signatory.
Fourthly, it is necessary to replace sending MLA requests regarding wildlife crime cases from Africa to Vietnam by post with online means such as email, fax and telephone due to the fact that sending MLA requests takes a lot of time due to the geographical distance between Vietnam and the African countries, and might affect the settlement progress. To ensure that MLA requests are delivered to recipient countries as soon as possible, Vietnam needs to establish direct communication channels with competent agencies in charge of MLA in criminal matters of foreign countries.
Fifthly, the Department of International Cooperation and Mutual Legal Assistance of the SPP should also consider developing a mechanism for regular consultations with foreign countries. Consultative meetings with foreign countries should focus on MLA requests submitted by Vietnam without receiving a response and review the progress of fulfilling MLA requests in Vietnam. At the same time, it should help judicial agencies of different countries to support one another in promptly addressing difficulties and inadequacies in the implementation process, thereby ensuring efficiency of MLA activities in the handling of wildlife crime cases.
Sixthly, the role of Vietnamese representative missions abroad should be enhanced. Vietnamese representative missions (embassies, consular offices, etc.) should actively contact authorities of host countries in order to intensify MLA activities and follow up with MLA requests including those related to wildlife cases.
Seventhly, “soft” solutions should be taken to actively improve the efficiency of MLA in the handling of wildlife crime cases, including signing memorandums of understanding and police cooperation with relevant countries, and foster the police cooperation through the INTERPOL. The INTERPOL will provide essential tools and services to help police forces do their jobs more efficiently through training programs, expert assistance, and a secure channel for exchanging information. Police forces can analyze information, predict crime trends, organize investigation activities, and arrest criminals effectively[13]. Vietnam should further promote police cooperation through the ASEAN National Police (ASEANAPOL) - the focal point for promoting cooperation in combating transnational crimes among the ASEAN countries. The close connection with the ASEANAPOL and INTERPOL is expected to help improve the effectiveness of cooperation against transnational crimes at both regional and international levels[14].
Finally, the role of wildlife protection organizations should be enhanced in promoting bilateral and multilateral cooperation to combat transnational wildlife trafficking networks. They can assist Vietnamese government agencies in intensifying the law enforcement cooperation between Vietnam and foreign countries along key wildlife trade routes between Africa and Asia through supporting the development of a legal framework for cooperation such as signing memorandums of understanding, MLA treaties, and crime prevention and control agreements. They can also provide help through supporting the maintenance of bilateral and multilateral cooperation through co-organizing bilateral and multilateral meetings, or creating channels for information exchange between focal points on international cooperation of law enforcement agencies and providing opportunities to build capacity of law enforcement officials in joint training courses[15].-
[1] Ho Chi Minh City University of Law, Email: huynb23@gmail.com.
[2] Ho Chi Minh City University of Law, Email: 2053801014081@email.hcmulaw.edu.vn.
[3] UNODC, “World Wildlife Crime Report 2020”, https: www.unodc.org/documents/data-and- analysis/wildlife/2020/World_Wildlife_Report_2020_9July.pdf, pp. 112-115.
[4] WCS, “Legal and institutional framework in combating transnational wildlife crime in Mozambique and Vietnam”, 2021.
[5] Data on wildlife species and their body parts seized within ASEAN include around 225,000 kg of ivory (2008-19), 4,500 kg of rhino horns (2016-17), 96,000 kg of pangolin scales (2017-19) and 2,200 tigers (2000-19).
[6] According to a 2020 report conducted by the International Union for Conservation of Nature (IUCN) in collaboration with the United States Agency for International Development (USAID), and the Trade Records Analysis of Flora and Fauna in Commerce (TRAFFIC), the region is a consumer point for illegal wildlife trade (IWT) networks of pangolins, ivory, rhino horns, turtles and birds from Africa; birds and tigers from South Asia; bears from East Asia; antelope horns from Central Asia; and reptiles and birds from America.
[7] WCS, “Legal and institutional framework for combating transnational wildlife crime in South Africa and Vietnam”, 2021, p. 5.
[8] Bui Thi Tra My, Mutual Criminal Justice Assistance in Vietnam - Some Theoretical and Practical Issues, Master of Jurisprudence, Hanoi Law University, 2016.
[9] Vuong Tuan Nam, “Report on risk management activities for wildlife transported on the sea route from Africa to Vietnam”, 2022, p. 13.
[10] The Department of International Cooperation and Mutual Criminal Justice Assistance of the Supreme People’s Procuracy, International Cooperation and Mutual Criminal Justice Assistance in Resolving Transnational Wildlife Cases, Ninh Binh province, April 2021, p. 8.
[11] The Department of International Cooperation and Mutual Criminal Justice Assistance of the Supreme People’s Procuracy, International Cooperation and Mutual Criminal Justice Assistance in Resolving Transnational Wildlife Cases, Ninh Binh province, April 2021, p. 11.
[12] Nguyen Duc Hanh, “International cooperation and mutual legal assistance in criminal matters in handling transnational wildlife trafficking crimes in Vietnam”, 2020, https://www.e3s- conferences.org/articles/e3sconf/abs/2020/24/e3sconf_tpacee2020_11006/e3sconf_tpacee2020_11006.html, (February 10, 2023), p. 12.
[13] Ministry of Public Security Portal - INTERPOL News Point, “Overview of the International Criminal Police Organization (INTERPOL)”, https://bocongan.gov.vn/diem-tin-interpol/tin-tuc/gioi-thieu/tong-quan-ve-to-chuc-canh-sat-hinh-su- quoc-te-interpol-d9-t127.html, (March 22, 2023).
[14] Nguyen Thi Kim Ngan, Nguyen Duc Phuc, “ASEAN Police Association - Model of International Cooperation to Combat Transnational Crime”, Journal of Jurisprudence No. 09/2008, p. 68.
[15] WCS Vietnam, “Advancing bilateral and multilateral cooperation to combat transnational wildlife trafficking criminal rings”, https://programs.wcs.org/vietnam/vi-vn/Lĩnh-vực-hoạt/Promoting Parallel-phương-và-đa-phương-nhằm-đấu-tranh-với-các-đường-dây-tội-phạm-buôn-bán-ĐVHD-xuyên-quốc-gia.aspx Cooperation, (February 13, 2023).
