International law fail the elephant? redux

“Has International Law Failed the Elephant?” That was the question posed a dozen years ago in an American Journal of International Law article by Michael J. Glennon, who’s now a Professor of International Law at Tufts’ Fletcher School of Diplomacy. In prose rife with admiration for the imperiled pachyderm, Glennon compelled his readers to answer “yes” to the question he had asked. He lamented the weaknesses inherent in the structure and implementation of CITES, the 1973ellies Convention on International Trade in Endangered Species of Flora and Fauna, and urged a range of improvements aimed at reducing the illegal market for elephant-harvested ivory. Inspired, my California-Davis Law student Jonathan Kazmar followed up with his own 2000 article, “The International Illegal Plant and Wildlife Trade: Biological Genocide?,” calling for the addition of criminal prohibitions to the limits contained in the original CITES.

These prescriptions have not taken hold. Trafficking in ivory increases and the number of elephants decreases. What is more, violence that long has ravaged civilians in the region encompassing Uganda, the Central African Republic, South Sudan, and the Democratic Republic of the Congo now claims elephants as victims. (credit for photo by Nuria Ortega/African Parks) According to a June 2013 report by the Enough Project:

‘The Lord’s Resistance Army, or LRA, is now using elephant poaching as a means to sustain itself. LRA leader Joseph Kony – wanted by the International Criminal Court for war crimes and crimes against humanity – has ordered his fighters to bring him elephant tusks. Eyewitnesses report that the LRA trades tusks for much-needed resources such as food, weapons and ammunition, and other supplies.’

Those allegations found voice Thursday. U.N. Security Council Resolution 2121 on the Central African Republic was passed

[c]ondemning the devastation of natural heritage and noting that poaching and trafficking of wildlife are among the factors that fuel the crisis …’

Which begs questions: Will international law again fail the elephant? Can stepped-up attention change the tide absent new international enforcement tools?  Assuming the requisite proof, could Kony be held criminally liable for a war crime of endangered species trafficking, framed within the terms of Article 8 of the ICC Statute as, perhaps, an act of pillage, destruction of property, or an unwarranted attack on a civilian objective? For answers to these questions, further study is in order.

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