Logging and legality: environmental crime, civil society, and the state.

• Date: 22 June 2007
• Author: Green, Penny,Ward, Tony,McConnachie, Kirsten
• Published date: 22 June 2007
• Author: Green, Penny

THIS ARTICLE CONSIDERS HOW CRIMINOLOGISTS CAN BEST ANALYZE THE CRIME AND harm involved in the destruction of forests around the world. Although "illegal logging" as conventionally defined is undoubtedly a major form of transnational organized crime, the boundary between "legal" and "illegal" logging is ambiguous and conceptually unsatisfactory. We illustrate this point with a number of examples, focusing in particular on the highly destructive but generally lawful practices of the timber industry in Tasmania. Drawing on recent work on state crime, we argue for a definition of crime as behavior that is both deviant, in the sense that it is subject to, and significantly affected by, social processes of censure and sanction, and "criminal" in the sense that it violates normative standards that we as criminologists endorse. We argue that in some situations (such as the Tasmanian case) the role of civil society in defining, censuring, and sanctioning deviant behavior is more significant than that of the state; however, the role of civil society in defining and censuring "illegal logging" must itself be subject to critical scrutiny.

Illegal Logging as a Major Transnational Crime

A significant part of the timber trade involves a world market in what are effectively illegal and stolen goods, worth up to $15 billion a year, for which the E.U. (including the U.K.), the U.S. and Japan are the main markets (House of Commons Environmental Audit Committee, 2006: 10). The evasion of laws and regulations designed to protect the natural environment--"environmental crime"--is nothing new. Illegal trade in endangered species, illegal, unregulated, and unreported fishing and whaling, illegal dumping of hazardous waste, much of the aquaculture industry in Latin America, and the smuggling of ozone-depleting substances flourish around the globe. Illegal logging and the illegal trade in timber and timber products are almost certainly the most economically significant international environmental crime. As an illegal trade, precise quantification remains illusive, but a U.N. report (UNECE and FAO, 2005: 13-15), citing a study commissioned by the U.S. paper industry, estimates that eight to 10% of global production and a similar proportion of trade is illegal, with the total value of "suspicious" timber products at up to $23 billion per annum. (2) The World Bank has estimated that in the tropical forests alone, 5,000 square kilometers of forests--an area the size of the island of Bali--were being illegally logged each year during the early 1990s (Callister, 1999). Figures from a range of NGOs and environmental research institutes suggest that over 50% of all logging in certain vulnerable regions is illegal. A World Bank-commissioned study (Contreras-Hermosilla, 2001) reported that 80% of logging in Brazil was illegal in the late 1990s, as was 80 to 90% of forest clearance in Bolivia and 94% of logging in Cambodia (there is now a ban on all log exports, ITTO, 2005: 45). The Indonesian government:

estimates that approximately 2.8 million ha [one hectare (ha) equals 2.47 acres] of forests are being cut down and the resulting logs and forest products smuggled each year. It also predicts that at such a rate the country would lose all of its forests in the next 20 years (ITTO, 2005: 45). In Russia, levels of illegal logging are believed to vary widely between regions, with suggestions that as much as 70% in the far east and 100% in the Caucasus is illegal (Ottisch et al., 2005). The International Tropical Timber Organisation (ITTO, 2004) estimates the trade in stolen timber between East and Southeast Asian countries is worth U.S.$2.5 billion annually. (3) China is now the world's largest consumer of illegal timber, with Indonesia the largest tropical supplier (Telepak and EIA, 2005).

The consequences can be devastating: illegal and unsustainable legal logging contributes to deforestation (directly and by opening forests up to other destructive activities), destroying the world's greatest reservoirs of biodiversity, threatening species such as the great apes in equatorial Africa and orangutans in Borneo, and hastening climate change (Barraclough and Ghimire, 1995; Dudley et al., 1995). It is directly implicated in "natural" disasters such as landslides (e.g., the recent devastating landslides in the Philippines) and flooding. Recent floods and landslides in Indonesia and Thailand (Independent, May 28, 2006) have been widely blamed on illegal logging. Producer countries lose legitimate tax revenue, estimated by the World Bank (2002: 14) to be $15 billion annually. These practices also fuel and fund civil wars. (4)

Problematizing Illegality

The exploitation of forests is subject to a wide variety of laws: customary laws; international laws relating to trade, human rights, the environment (notably CITES, the Convention on the International Trade in Endangered Species); national and local laws relating to land tenure, human rights, exports, conservation, wildlife and forestry; and the terms of licenses or concessions for the logging of specific areas. There are, however, serious problems in accepting "legality" as a criterion of criminality, or as a basis for measures to curb the damaging aspects of the timber trade.

Most tropical forests are owned by states, and logging is legal when it conforms to the terms of concessions granted to logging companies; but these legally defined property rights are based on the expropriation of land from its indigenous inhabitants (Ginting, 2005; Colchester, 2006). As Nancy Lee Peluso (1991:11) writes with reference to Indonesia:

The law defines and determines the boundaries of criminality, but customary laws, practices, and beliefs, or unfavorable material conditions often confound the enforcement of contradictory state laws. Under such circumstances, the enforcement of the state's law becomes a crime in the eyes of the people, an impingement either on ... their "moral economy" ... or simply on the perceptions people have of what is right.... Not only is the legitimacy of state law often contested, but contradictory laws may also exist within the same state. For example, the regulation of forestry in Indonesia was decentralized after the fall of Suharto, and now involves a complex combination of national laws, regulations, and licenses issued by local authorities, and legally recognized customary land rights that entitle peasant communities to royalties on timber felled (Smith et al., 2003).

Further ambiguities arise from forest laws, some of which are "poorly written and confusing" (Bracket al., 2002: 15), while others are "difficult to obtain [and] difficult to analyse" (quoted in Ibid.: 55). Ambiguous legislation makes the identification and quantification of illegal activities particularly difficult.

Lack of effective enforcement also compounds ambiguity. In Papua New Guinea (PNG), for example, most logging is licensed, and thus claimed by the government and industry advocates to be legal (ITS Global, 2006). However, a recent report found that virtually all PNG logging was unlawful, primarily because companies fail to obtain "informed consent" from the indigenous owners of forests or to ensure a sustainable timber yield. As the major Indonesian environmental NGO WALHI (Friends of the Earth Indonesia) argues:

illegal logging is connected to, and dependent upon, "legal logging." This is so because of the misuse of the permits which are issued by government officers, bribed police and military officers, usually with support of economically and politically powerful interests. A technical focus on "illegal logging" fails to target the real criminals, those behind the operations. Instead it risks targeting poor people who have no financial alternative, and are often forced to participate in the logging operations (WALHI, 2003). Smith et al.'s (2003) research in Kalimantan (Indonesian Borneo) confirmed this relationship. Local officials authorized timber companies to fell far higher volumes of timber than could realistically be extracted from authorized areas, providing a cover for timber felled outside those areas. Moreover, legal logging provides the industrial facilities that illegal logging needs, and provides a means of "laundering" illegal timber (Ginting, 2005).

Finally, even unambiguous legality is no guarantee of sustainability. A recent report from an alliance of Dutch NGOs (Milieudefensie et al., 2006) provides many examples from around the world (including Tasmania, discussed below). In Russia, some logging permits positively require companies to carry out ecologically destructive logging--requirements that, ironically, are often flouted because compliance would be unprofitable (Ibid.: 28-29).

The international regulation of the timber trade--such as it is--predictably focuses on legality rather than sustainability. The E.U. Commission justifies this aspect of its FLEGT (Forest Law Enforcement, Governance, and Trade) scheme on the grounds that:

an immediate requirement for sustainability has proven not only difficult to define, but beyond the abilities of many forest owners and managers to meet. Legal compliance, which forms an essential component of many sustainable forestry definitions, should be a more achievable target ... (E.U. Commission 2004: 1). Though true enough, this ignores the almost equally ambiguous nature of legality (Savcor Indufor Oy, 2004). Under the FLEGT program (Council Reg. 2173/2005), imports of timber from countries that have entered into "partnership agreements" with the E.U. (no such agreements have yet been signed) are subject to licensing and independent third-party verification. The scheme is open to evasion by imports via third countries (for example, China, whose voluminous plywood exports to the E.U. commonly use illegally sourced veneers) (Stark and Sze, 2006).

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