ByCampbell Erickson – As we continue to investigate the linkages between the anti-corruption and climate change movements, it would be naive to not consider illegal logging. The world’s greatest forests suffer at the hands of some of the world’s largest economies, all hungry for resources without care for their origins. Beyond providing refuge for enormous amounts of biodiversity and serving as the home for many indigenous groups, these forests – such as the Amazon Rainforest, the Congo Rainforest, or the North American Boreal Forest – act as important carbon sinks in the battle against climate change. So, the question must naturally follow: how can we best fight illegal logging in order to protect these critically important biotas? The answer is straightforward: hold large multinational corporations accountable in international courts for organizing and funding the destruction of critical forest.
Understanding the Industry
Illegal logging is a massive industry, producing somewhere between $50 billion to $150 billion in revenue every year. In short, illegal logging occurs when timber is harvested from protected land, transported through illicit networks to production plants, and then laundered into the legal timber marketplace. Oftentimes, illegal logging directly threatens indigenous people and preys on people experiencing poverty who do the industry’s dirty work of harvesting and transporting timber.
Part of the challenge in effectively protecting large forests from illegal logging is that there are catalogues of potential crimes, committed by disparate criminal networks throughout multiple legal jurisdictions. Moreover, even when an advocacy group or special task force has identified a crime and brings it to court, many countries have judicial systems that are generally underfunded and riddled with inefficiencies. Furthermore, information sharing between nations, which is normally required in these types of prosecutions, is a slow and arduous process that lacks streamlining. Often, this results in low-level laborers being prosecuted while the more significant reprobates remain rich and powerful.
At the root of nearly all of this criminal activity is corruption. And oftentimes, these financial crimes implicate higher-level actors across national boundaries and through multiple instances of criminal activity. This is what environmental NGO Earth League International, which works on illegal animal poaching, calls “choke points” in environmental crime. And while ELI, for instance, has focused on applying this methodology predominantly to the ivory trade, this focus on environmentally-related corruption is very productive.
Prosecuting Corporate Actors for Corruption
At the root of the illegal logging industry are very large corporations. In 2005, BlueLinx, one of America’s largest builders, was caught smuggling illegal lumber out of Indonesia. In 2011, Lumber Liquidators was charged for importing illegal timber. And more recently, GreenPeace has released multiple reports accusing Sabra International, East Teak Hardwoods, Timber Holdings USA, and at least seven other U.S. corporations of having ties to illegal sawmills in the Amazon. Moreover, although China’s laws have recently changed, Chinese firms have long been allowed to import illegal timber and are large stakeholders in the illegal logging industry. If two of the world’s largest economies were not enough, recent reports tie multinational corporations from Europe, such as Norsudtimber, to vast illegal logging operations in the Democratic Republic of Congo as well.
In order to protect the world’s invaluable forests, we need to think big about prosecuting corruption. Environmental corruption, particularly in the terms of the illegal timber trade, remains difficult to quell due to opportunity for profit and impunity. Whereas individual seizures of illegal timber and isolated fines against multinational corporations should provide for some deterrence, until criminality at the highest levels is prosecuted, the illegal timber trade will continue to rage on. Thus, an innovative approach must be taken in order to make the prosecution of corporations for environmental corruption a reality: regional or international courts must be established that are tasked, at least in part, with enforcing domestic laws against environmental corruption. This layered approach – abstract courts enforcing domestic, and not international, law – could serve as an effective counterbalance to the illegal logging trade.
Multinational corporations are not entirely considered to be “persons” under the Geneva Convention, but customary international law does tell us that, in instances, multinational corporations are granted rights and obligations across national boundaries. Unfortunately, the enforcement of these obligations, in practice, is often trumped by claims of sovereignty to a nation in which the corporation is headquartered. This claim can get in the way of both regional and international prosecutions, and given a 1970s decision by the International Court of Justice, it is likely such a right would be upheld. Whereas redefining customary international law might be an overwhelming task, those looking to fight illegal deforestation should look towards the Special Court for Sierra Leone for inspiration.
The Special Court for Sierra Leone was the first-ever “hybrid court,” in which an international judicial body’s prosecutor could enforce violations of domestic laws. If a similar model were applied to environmental corruption, it is possible that member parties would not need to navigate customary international law. Instead, they could go about bypassing questions of corporate personality and focus instead on applying already widely symmetrical anti-corruption laws to illegal logging.
The International Anti-Corruption Court is an example of a possible mechanism for prosecuting corporations for corrupt practices as they relate to the environment. However, with regards to environmental corruption crimes, regional mechanisms might be far more efficient and effective; regional governmental bodies, such as the Organization of American States, already operate under information-sharing agreements and might be more ready to engage with one another. If regions were to collaborate on environmental anti-corruption courts, prosecute an individual or corporate board for corruption, and then call for those individuals’ extradition or punishment, it would set a clear tone for the seriousness of these crimes and potentially lead to more successful prosecutions.
This model for prosecuting environmental corruption is not mutually exclusive from larger efforts, such as the IACC, that are trying to create a broader initiative that can enforce anti-corruption laws against high-level political officials. Instead, it could be a testing ground for the logistics of establishing, staffing, and operating such a court. If successful, this model could further enjoin the climate change and anti-corruption communities and produce important intelligence about the financial pathways of the illegal logging industry.
Until multinational corporations are held accountable for their crimes, beyond slaps on the wrist or prosecutions of the lowest-level actors, illegal logging will continue to devastate forests, threaten indigenous people, and make overcoming the climate crisis ever more difficult. We need to get serious about corporate crime, and it’s time to do so through regional or international courts.