- CITES COP-19 starts in mid-November 2022 and is likely going to be a decisive meeting for the protection of species such as rosewood.
- Both CITES and Madagascar have banned the export of rosewood and ebony, but there appears to be no end to the illegal trade, and the fate of nearly 40,000 illegally-exported rosewood logs seized in Singapore, Kenya and Sri Lanka in 2014 is still uncertain.
- Action is needed at COP-19 to protect such stockpiles of seized rosewood from being sold, and for the remaining Malagasy rosewood and ebony trees to be protected before they are all gone, a new op-ed argues.
- This post is a commentary. The views expressed are those of the author, not necessarily Mongabay.
Madagascar is said to be one of the top biodiversity hotspots in the world. About 80% of Madagascar’s unique biodiversity, numerous species found nowhere else on Earth, depends on its forest ecosystems. While the world stands idly by, deforestation of this critical island habitat continues unabated.
UNESCO has put rainforests in Madagascar on its List of World Heritage in Danger. In 2013, the Convention on International Trade in Endangered Species (CITES) listed all species of Malagasy rosewood and ebony on Appendix II, its list of species threatened with extinction. Madagascar has close to 65 species of rosewood and more than 60% of the 215–230 ebony species are only found only in that country.
Environmentalists and scientists have called on CITES to up-list these species to Appendix I, arguing that only the full protection of CITES will save them from extinction. As an integral part of the Appendix II listings, CITES and Madagascar have banned the export of both rosewood and ebony. Nevertheless, there appears to be no end to the illegal rosewood trade.
Action is needed now to protect the nearly 40,000 illegally-exported rosewood logs seized in Singapore, Kenya and Sri Lanka in 2014, the stockpiles of rosewood and ebony in Madagascar, and the remaining living Malagasy rosewood and ebony trees before they are all gone.
In 2014, Singapore seized 29,434 rosewood logs, then worth more than $50 million and constituting the largest seizure of CITES-listed species in history. The Agri-Food and Veterinary Authority of Singapore (AVA) made the seizure while the rosewood was being offloaded to a Free Trade Zone (FTZ). During AVA’s investigation, the smugglers presented several documents, including: A letter from Madagascar’s director-general of forests dated March 10, 2010 (after the 2009 coup d’état and before the 2013 restoration of democracy) that authorizes the export of 5,000 metric tons of rosewood; And documents, dated February 17 and 18, 2014, and purportedly from the Malagasy forestry ministry, authorizing the export of approximately 30,000 logs of unspecified “wood.”
The consignee of these documents was Kong Hoo Private Limited. Kong Hoo claimed that the logs were exempt from the CITES export ban because the rosewood authorization predated the CITES listing of Malagasy rosewood. It also contended that the shipment was made during a one-week gap in the CITES rosewood embargo.
AVA charged Kong Hoo and its director, Wong Wee Keong, (collectively referred to here as the “smugglers”) with transporting CITES-scheduled species into Singapore without the requisite written CITES documents from Madagascar, citing Section 5(1) of Singapore’s Endangered Species Act, which codified Singapore’s obligations under CITES. That formed the initial basis of the Government of Singapore’s prosecution of the smugglers.
In the course of its investigation, AVA contacted the Malagasy Ministry of Environment and Forests to seek clarification on the authenticity of the smugglers’ documents. In response, AVA received conflicting emails that first denied, but later confirmed the authenticity of the documents. Then, on December 3, 2014, a delegation of officials from the Malagasy government came to Singapore to review the documents and discuss the legality of the seized rosewood shipment. Following that visit, Ramparany Anthelme, Madagascar’s environment minister, sent an email to AVA confirming that the smugglers’ documents were authentic and that his ministry had authorized the shipment, despite the embargo.
Due to continued assurances from Madagascar of the legality of the shipment and later refusals to clarify the legality, Singapore could no longer bring an action charging the smugglers with a violation of CITES. However, after contacting the CITES Secretariat and undertaking further investigations, AVA became convinced that the massive number of transported logs had been illegally exported in violation of the CITES embargo. Since the shipping documents listed a Singapore company as the final destination, AVA decided to charge the smugglers with illegally “importing” the logs into Singapore. As a result, the prosecution amended its charge from the failure to comply with CITES’ export-import permit requirements, to asserting that the smugglers unlawfully imported the rosewood into Singapore, in violation of Sec. 4(1) of the country’s Endangered Species Act.
At trial, the smugglers’ lawyers made the focus of the case not on whether the logs had been illegally exported from Madagascar, but instead, whether the rosewood was “in transit” to Singapore. The smugglers could only be charged under Singapore’s Endangered Species Act if they did not intend to export the logs from Singapore to Hong Kong, as some evidence suggested.
In order for the smugglers to prove that the rosewood was “in transit,” they had to prove that the logs had been brought into Singapore solely for the purpose of re-exporting them; and also that they were “under Customs control” during the entire time they were in Singapore. At the end of the prosecution’s presentation of its trial case, the smugglers moved for acquittal, contending that the prosecution had not proved that the smugglers intended to import the rosewood into Singapore as its final destination. The judge agreed and granted an acquittal mid-way through the trial. The acquittal was immediately appealed.
In 2014, while the original trial was underway, there was a change in the Malagasy government leadership. Anthelme, the minister who had confirmed the authenticity of the smugglers’ export documents, was removed from office, and the new government vowed to protect the country’s forests. The new prime minister, Jean Ravelonarivo, sent a letter to the general prosecutor in Singapore stating that the previous minister’s validation of the documents was false and “should be considered as repudiated and rejected by the Government of Madagascar.” He further stated that “all export or export license approvals [for the rosewood logs in Singapore] are invalid,” and that the smugglers’ documents “are in violation of CITES decisions and national regulations.”
The letter was presented to the appellate court during the appeal of the case, even though new evidence generally is not admitted on appeal. The appellate court held that the letter could not be admitted as evidence for procedural and other legal reasons. But it did find that the prosecution in the first trial had introduced sufficient evidence that the wood was not “in transit,” and was intended to be imported into Singapore. As a result, and noting the Prime Minister’s letter, the appellate court reversed the acquittals, and remanded the case back to the trial court, ordering that the smugglers be called to present a defense in a second trial.
By the time of the second part of the trial in 2016, the Malagasy government had changed again, and Prime Minister Ravelonarivo was no longer in office. The new Malagasy government did not respond to repeated requests from Singapore’s AVA and prosecutor’s office to clarify the conflicting testimony of the former environment minister and prime minister. As a result, Singapore’s prosecutor did not attempt to amend its case in the second trial to reinstate the initial charge of a CITES violation.
In the second part of the trial, the smugglers were called to present a defense as the appellate court had ordered, but again chose to remain silent. Once again, they were acquitted. But in a second appeal, Singapore’s High Court, its intermediate court, reversed the acquittals. On the first element of the charge, “importation,” it held that all of the import documents specified that “wood” was to be delivered to a Singapore company but did not alert Singapore Customs that a CITES-listed species was being offloaded. It also held that there were no firm plans to re-export the wood, and that the smugglers’ invocation of their right to remain silent should be held against them because they were the only witnesses who could testify to the rosewood’s final destination.
The High Court then considered whether the shipment was under Customs’ control. The court determined that while customs ultimately controlled the FTZ where the wood was offloaded and stored, it was never informed that the wood constituted a CITES-listed species intended for transshipment. The High Court concluded, therefore, that the wood could not have been “in transit,” and Singapore’s own endangered species act applied. The High Court convicted the smugglers, imposed fines and jail time, and ordered that the rosewood be confiscated.
In 2019, an extraordinary appeal followed to Singapore’s highest court, the Court of Appeal. Two legal questions were evaluated: Must the shipper have arranged for the wood to have been re-exported to a third country before it arrived in Singapore in order for it to be deemed “in transit?” and Must customs have actual knowledge that a CITES-listed species in transit is in the FTZ and then exercise “conscious control” of it, meaning did the customs officers know that they had logs that were going to be re-exported? The Court of Appeal found that while a “concrete present intention” by the shipper to export the wood from Singapore was required, it was not essential that the shipper either have an export contract or a specific date of export prior to arriving in Singapore. It also held that the question of whether goods were “in transit” or “to be imported,” which would dictate which of Singapore’s laws would apply to a shipment, could not depend on the mindset of individual Singapore Customs officers. Based on these holdings, the wood was determined to have been “in transit,” and the smugglers were once again acquitted.
To be clear, the legal question of whether the rosewood was illegally exported from Madagascar in violation of the CITES embargo was never an issue in any of these judicial proceedings. Additionally, inexplicably, all of the courts accepted the allegation that there had been a one-week gap in the CITES embargo on shipments of rosewood during that precise time period the smugglers brought the wood out of Madagascar as true; therefore, the courts concluded that the CITES embargo did not apply. They got this wrong on both accounts, as CITES confirmed in a Notice issued almost immediately after the acquittals.
The final Court of Appeal decision overturned the convictions and waived the smugglers’ fines and fees. It also required that the rosewood be released to the smugglers “as soon as is practicable and in such a manner as may be arranged between them and the relevant authorities.” Fortunately, the Singapore National Parks Board (NParks), which is the CITES management authority in Singapore, notified CITES of the problematic decision. On September 26, 2019, immediately after the final decision, CITES issued the aforementioned Notice to all of its 184-member states, apprising them that this rosewood was illegally exported to Singapore and calling on them to take all appropriate enforcement actions in the event any attempts were made to import this rosewood into their countries.
This leaves the ultimate disposition of the 30,000 rosewood logs hanging in limbo.
Ever since the Court of Appeal rendered its judgment on April 8, 2019, the smugglers have been entitled to take possession of the 30,000 rosewood logs. Once they do so, however, they will then only have 14 days to re-export the wood. If the smugglers cannot get the logs out of Singapore in 14 days, they will be in violation of Section 4(1) of Singapore’s endangered species act and subject to the full penalties under the law. As a result, while making frantic efforts to find buyers, the smugglers have refused to take title to the wood in a bid to buy more time. As such, Singapore bears the cost of storing and guarding the wood, and opportunities to smuggle some out of Singapore become a potential problem.
Meanwhile, after the High Court’s judgment against it, Kong Hoo filed for bankruptcy protection in the High Court to avoid paying the fines. As a result, the Court of Appeal’s directive to return the rosewood to the smugglers also became subject to the High Court’s jurisdiction. The smugglers have repeatedly requested, and the High Court has granted, multiple extensions of time to take title to the wood.
For the past three years, the smugglers have failed to claim title. The wood has remained in the custody of Singapore officials and Singapore has paid for storage. The smugglers have continued to look for potential buyers. Just recently, an interested buyer from mainland China reportedly visited Singapore to examine the wood and discuss purchasing it (personal communication). The High Court’s continued extensions are inadvertently assisting the smugglers in facilitating the sale of the wood and almost serve as an invitation for them to procure fraudulent CITES certificates to that end.
(As a side note, despite the enormously time-consuming and valiant efforts of the lawyers officially representing Madagascar from both that country and Singapore in the many trials and appeals, for several years now, they have not been paid. This flies in the face of repeated pledges from both Madagascar and the World Bank, the latter having promised to fund Madagascar’s efforts to recover the wood in Singapore. The author assisted these lawyers in a pro bono capacity, was not compensated and had no official representational authority.)
CITES has declared that the rosewood was illegally exported from Madagascar and that any further trade would violate CITES and become subject to enforcement actions. Singapore should immediately request that the High Court confiscate the wood. Singapore’s apparent reluctance to do so may be predicated on the perceived potential harm to the country’s reputation as the “hub of commerce” in the Pacific. Both CITES and the international community should collectively support Singapore, politically and financially, and demand that this rosewood be confiscated and disposed of in a way that does not have a detrimental effect on the remaining living rosewood trees.
Seizures in Kenya and Sri Lanka
In April 2014, Kenya seized 30 containers holding some 4,400 Malagasy rosewood and ebony logs. All the logs had been illegally exported from Madagascar. Following the playbook used in Singapore, lawyers representing the smugglers have engaged in complex legal proceedings to out maneuver the Kenyan prosecutors. After years of legal proceedings, including two trials and two appeals, the Kenyan courts also ruled that the seized logs be returned to the shippers who had illegally transported the logs out of Madagascar in violation of the embargo established by CITES and Madagascar on all international trade in rosewood and ebony.
The CITES Secretariat has issued a Notice to all CITES Parties that the Kenyan rosewood, like the rosewood in Singapore, was illegally exported from Madagascar, and anyone attempting to import the wood should be subject to enforcement procedures and the wood should be seized.
In March 2014, Sri Lanka seized 28 containers with 3,669 Malagasy rosewood logs that it put up for auction in 2017. Protests were made claiming that the auction would stimulate illegal trade in Malagasy rosewood. Allegations were made that the auction did not follow proper tender procedure, as tenders were not called for through local and international advertisements. It was alleged that Sri Lankan Customs called for bids from few parties and selected a bidder known to a powerful politician of the ruling party. Three days after these allegations there was a cabinet shuffle that was alleged in the press to have been related to the improper auction.
It is not known if this controversy caused the auction to be invalidated and it was never revealed what happened to the rosewood. However, a Notice of Tender was issued in 2022 listing substantial rosewood with no stated country of origin for sale on July 4, 2022. There has been no publicized seizure of substantial quantities of rosewood since the 2014 seizure of Malagasy rosewood. Because the wood’s country of origin was not listed, protests were made to the Sri Lankan CITES Management Authority and Customs, the CITES Secretariat and Interpol. However, due to the collapse of the Sri Lankan government in July 2022 there has been no confirmation either of the country of origin or of whether the auction went forward despite the protests.
The CITES Secretariat has yet to issue any sort of notice concerning the rosewood in Sri Lanka.
Stockpiles of rosewood and ebony in Madagascar
During the 2009–2013 Malagasy political crisis, there was widespread felling of rosewood and ebony trees throughout the country, including inside national parks and UNESCO-designated areas. The wood was stockpiled throughout the country. Subsequently, these stockpiles were classified into three categories: (i) seized by the government; (ii) declared to the government and unseized; and (iii) hidden. There are unconfirmed reports that logs were submerged in lakes to conceal and preserve them for future sales.
According to estimates from international observers, including the International Tropical Timber Organization, TRAFFIC, and the World Bank, the number of rosewood and ebony logs in undeclared stockpiles ranges from 100,000 to 500,000. Official government stockpiles of seized wood, however, contain only approximately 30,000 logs, coincidentally, the same number of logs seized in Singapore. The Malagasy precious wood in these stockpiles has been called “the largest and most valuable timber stockpile on Earth.” The stockpiles’ ultimate disposition has been debated since they were created, but as of now, they remain unaudited, unsecured and open to being illegally exported by traffickers. The stockpiles have been a major source of rosewood and ebony for black market export, with an estimated 98% of the rosewood from the country going to China for more than a decade.
In 2013, CITES adopted an action plan for Malagasy rosewood and ebony (Decision 16.152, the Action Plan), which the World Bank pledged to help implement. The Action Plan was intended to: 1) ban rosewood and ebony trade until Madagascar could identify the main species that are likely to be harvested for trade; 2) prepare enforcement materials for customs officials around the world to identify Malagasy rosewood and ebony; 3) if appropriate after finding that international trade would not be detrimental, establish a protective quota for each of the species of rosewood of ebony being traded; 4) prepare an audit of the stockpiles of rosewood and ebony and secure those stockpiles to prevent illegal export; 5) establish effective domestic Malagasy forestry enforcement capacity; and 6) provide CITES with progress reports on the implementation of the Action Plan.
Despite years of reports replete with platitudes, the Action Plan remains largely unimplemented. Rosewood species have not been sufficiently identified by scientists to prepare enforcement materials or to establish protective quotas. More than 60% of the approximately 280 estimated species of ebony have yet even to be identified. The rosewood and ebony stockpiles remain unaudited and unsecured. No major enforcement has been undertaken. Low-level traffickers have been charged, but not one timber baron or other high-level trafficker or executive of a criminal syndicate has ever been prosecuted. Few convictions have occurred, and those that have only resulted in minor fines and no jail time. Instead, Madagascar has focused its efforts on prosecuting several prominent environmental activists seeking to protect Madagascar’s forests.
There have been no international seizures of Malagasy rosewood since 2014. However, subsequent investigations by the Environmental Investigation Agency, a non-governmental organization based in Washington, D.C., have documented abundant Malagasy rosewood in China. Other reports have confirmed the steady flow of Malagasy rosewood to China, implicating the Malagasy government and its supporters in this trade.
Both the lifting of pandemic restrictions by Madagascar in June 2021 and the economic fallout of the pandemic reportedly have caused an increase in illegal logging in Madagascar. Criminal syndicates are said to be trafficking precious Malagasy timber to this day. The need for immediate action in Madagascar could not be more critical. Forty thousand logs are hanging above the river of illegally trafficked wood, protected only by the grace of the Singapore and Kenyan CITES authorities. A presidential election is scheduled in Madagascar for next year, and these have traditionally caused an increase in illegal exports. And the parties and civil society organizations at CITES are experiencing fatigue as the implementation of the Action Plan has gone nowhere for years. All of these factors play into the hands of the traffickers.
Universal inaction on Malagasy precious-wood smuggling
In 2014, in addition to the Singapore, Kenya and Sri Lanka seizures, seizures of Malagasy rosewood occurred in Zanzibar. No one has been successfully prosecuted for any of these seizures.
CITES, UNESCO and the World Bank have all stood back to allow national court systems to undertake the prosecutions without help, while the Malagasy government has actively or passively hampered them. Many court systems do not have the resources or expertise to understand the intricacies of CITES or to successfully undertake these complex prosecutions against well-funded criminal syndicates.
The Singapore case is a perfect example of valiant but ultimately unsuccessful prosecution attempts that have been undermined by overt and passive acts of the Malagasy government and the inaction of all relevant international bodies and their implementing agencies. Singapore’s courts clearly have failed to do justice.
At the 74th meeting of the CITES Standing Committee, held March 8–12, 2022 in Lyon, France, Madagascar made a radical proposal that it remove the official government stockpiles of approximately 30,000 seized rosewood and ebony logs from CITES oversight. Madagascar suggested that these logs be used on a “domestic level, for building infrastructures and restoring public buildings (e.g., in museums, material for schools),” and also to produce handicrafts of up to 10 kilograms (22 pounds) for sale to international tourists. CITES documents to export these unusually large artisan objects from the country, however, would not be required. Surprisingly, parts of this proposal received the tentative support of the CITES Secretariat.
The proposal provides no safeguards to ensure that rosewood and ebony slated for domestic use is not illegally sold on the international market. Additionally, there is nothing to prevent “leakage” from the “undeclared” or “hidden” stockpiles into the official stockpiles. The official stockpiles have never been secured and are held at multiple sites around the country, and they are readily subject to tampering. The proposal further fails to make sure that no living trees, which have a higher value than stockpiled logs, are illegally logged and turned into timber or handicrafts.
Further, the proposal offers no specifics about how the wood to be used for handicrafts would be provided to the “craftspeople.” For example, will they be given whole logs? Will logs or their parts be tracked? Will there be some form of tracing mechanism to ensure that only rosewood and ebony from the official stockpiles is shipped overseas? If no CITES documentation is required, how will this rosewood and ebony be distinguished from other such wood when presented to customs? How will officials ensure wood slated for domestic use is not exported? How many of these 10 kg “artifacts” can “tourists” buy? Could a “tourist” buy 10? 100? 10,000? How many traditional Chinese hongmu tables, chairs and other furniture weigh more than 10 kg? Would such furniture be considered a handicraft? Could Chinese companies set up factories to manufacture furniture weighing less than 10 kg employing local “craftspeople?” Could local craftspeople manufacture the parts of furniture to be assembled in China?
Madagascar’s current minister in charge of forestry has pointed to the reconstruction of the Queen’s Palace in the capital Antananarivo as an example of how these stockpiles could be used in public buildings. The building was ravaged by fire in November 1995. As part of the 2019 renovation process, 360 cubic meters (12,713 cubic feet) of rosewood were taken from one of the “official” stockpiles, but a recent investigation was unable to verify what wood was removed from the stockpiles and whether all of the wood removed was actually used in the renovation.
There are multiple examples of how the legal sale of threatened or endangered species or their parts has created a parallel illegal trade, causing the demise of the very species that CITES was created to protect. The most notable example is the clear correlation between the legitimate ivory trade that gave cover to the illegal ivory trade, resulting in a dramatic decline in African elephants. Like the ivory collected from illegal poaching, indistinguishable from legally-sold ivory, the Malagasy rosewood and ebony from the official stockpiles that is legal to sell would be indistinguishable from the wood in both “undeclared” and “hidden” stockpiles and from the remaining living trees, which is illegal to sell.
Fortunately, the CITES Standing Committee meeting has not made any decision on this proposal. The 19th CITES Conference of the Parties (COP-19) will again take it up in mid-November in Panama. This plan must be stopped.
CITES COP-19 in November
Action must be taken at COP-19 to provide international support for Singapore to confiscate the seized rosewood before it is lost. Since 2019, CITES has put its member states on notice that the shipment to Singapore is illegal and should not be accepted by any member country. But CITES must also affirmatively encourage Singapore to confiscate the rosewood immediately and not to give the smugglers more time. CITES must do everything possible to ensure that the largest-ever seizure of CITES-listed species is not returned to the smugglers for sale in the international illegal rosewood trade.
After almost 10 years, the CITES Action Plan for Madagascar has yet to be implemented. CITES and its member states must provide adequate funding and expertise to implement the Action Plan, before any wood from the stockpiles can be used domestically or for exportable tourist “handicrafts.” The current Malagasy proposal will result in widespread illegal trade from the “undeclared” and “hidden” stockpiles and put the remaining living rosewood and ebony trees at risk of extinction. At COP-19, CITES must establish a committee to discuss the steps and funding so that all species of Malagasy rosewood and ebony will be poised to be up-listed to Appendix I at COP-20.
The Madagascar precious timber situation, in all its complexity, raises wider questions about the overall efficacy of CITES. A fundamental recurring problem is that, similar to Singapore and Kenya, most countries do not have the capability to effectively prosecute CITES violations when CITES-listed species or their parts are seized. Given the extraordinarily high value of most of these seizures, unparalleled opportunities are created for corruption, and the international syndicates behind the smuggling have virtually unlimited resources to defend their contraband and smugglers. The Singapore and Kenyan cases clearly demonstrate this.
It is way past time that CITES or its implementing agencies become authorized to actively aid any country that seizes CITES-listed species or their parts in the vigorous prosecution of traffickers and to clarify the seizure’s CITES status. Until there is serious legal enforcement, it will continue to be extremely lucrative and of minimal risk for criminal syndicates to smuggle rosewood, ebony, ivory, rhino horns, tiger skins, snakes, orchids and a plethora of other endangered, threatened and rare species. CITES is the last hope for many of these species and for the protection of global biodiversity. At COP-19, CITES member states must give a mandate to CITES or its enforcement agencies to aid in these essential prosecutions.
COP-19 is a decisive meeting for the protection of the remaining living Malagasy rosewood and ebony trees. CITES and its Parties have the necessary funds, expertise and other resources to prevent a resurgence of illegal trade in Malagasy rosewood by: 1) aiding Singapore, Kenya and maybe Sri Lanka to seize and dispose of the nearly 40,000 Malagasy rosewood logs in a manner that is not detrimental to the species, 2) providing the resources and expertise so that Madagascar can fully implement the Action Plan so it can utilize the stockpiles of rosewood and ebony in Madagascar without having a detrimental effect on the remaining rosewood and ebony trees, and 3) taking any other steps necessary to protect Malagasy rosewood and ebony forests.
A sign-on letter from civil society organizations and scientists working in Madagascar and/or on biodiversity issues that calls for these actions at COP-19 can be found here: https://ecopolicyadvisors.com
Mr. Roberts has practiced law for 36 years, specializing in international environmental, climate, deforestation and trade law. He founded ECO Policy Advisors, a U.S.-based consultancy providing support to clients in international fora to find sustainable and collaborative solutions to complex environmental issues. He has actively consulted with attorneys retained by the Malagasy government in both Madagascar and Singapore working to prosecute the smugglers and protect the nearly 30,000 rosewood logs in a separate civil proceeding. Mr. Roberts regularly speaks and writes on legal, technical and policy issues related to climate change, deforestation, and control of greenhouse gases (particularly HFCs and ozone-depleting substances).
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