“Sea fisheries crime is a major, international, moving crime that involves vast amounts of illegal fish and seafood, including high profile, white-collar crime syndicates, and a lot of other issues, including human and drug trafficking,” says South Africa’s Professor Hennie van As, a global specialist on sea fisheries and related organised crime, who is collaborating with governments, INTERPOL and the United Nations Office on Drugs and Crime (UNODC) to address this global problem.
An admitted advocate, he is a professor in Public Law and Director of the Centre for Law in Action (CLA) in the Faculty of Law at Nelson Mandela Metropolitan University (NMMU) in Port Elizabeth.
“As we all know, South Africa is currently investigating several Chinese fishing boats in our waters, but what people have to realise is that highly organised, well-financed transnational criminal activities are taking place within our waters and within international waters, all the time,” he explains.
“The illegal harvesting, processing and trading of any kind of fish or seafood globally is so huge that it is in effect a parallel economic system that is undermining sustainable economic growth. Countries are being deprived of taxes; citizens of jobs, food and income, and fisheries and environments are being destroyed.”
Research by the United Nation’s Food and Agricultural Organisation (FAO) estimates that between USD 11- and 30 billion is annually lost to illegal fishing, with the highest rates in West African waters. Southern and East Africa loses in the region of R12.2 billion to illegal and unreported fishing every year. The FAO further estimates that 85% of fish stocks worldwide are now fully exploited, and illegal fishing is one of the main contributors.
“The extent of sea crimes we are facing, and the depth of people’s cruelty in this business is incalculable. So many people are getting away with major crimes. In South Africa we urgently need to address this problem together with the National Prosecuting Authority, and to establish why prosecutions for fisheries-related crimes often fail – is it the prosecution or the lack of proper evidence collected?” adds Prof van As who is part of an international research and capacity-building partnership on sea fisheries crime between South Africa and Norway, called PescaDOLUS.
Earlier this month he received confirmation from the Norwegian Embassy that funding has been approved by Norway towards the establishment of a Fisheries Law Enforcement Academy at NMMU.
“The main purpose of the Academy is to address international sea fisheries crime. We aim to train fisheries inspectors and other role players in the criminal justice system along the South African and East African coastline as well as Namibia, with a plan to extend this throughout the Indian Ocean Rim, including countries like Indonesia,” he explains.
“It has the buy-in from the world’s largest international police organisation INTERPOL, the African Union and the United Nations Office on Drugs and Crime (UNODC) because the oceans link us all, and porous harbours or borders are a danger to all.”
The work of the UNODC’s Global Maritime Crime Programme and Combined Maritime forces (CMF) illustrates this. On the 31 March 2016 the Sri Lanka Navy seized 101kgs of heroin on an Iranian fishing dhow off the coast of Sri Lanka. The CMF responded immediately, facilitating support as requested by the Sri Lankan authorities to assist with the police investigation. The drug stamps found on the consignment matched with records of the Compendium of Drug Seizures at Sea, clearly establishing that the same drug trafficking networks operating from the Makran Coast to East Africa, are now operating to South Asia.
Prof van As is in no doubt that the link between drug smuggling and illegal fishing is rife in South Africa.
The Fisheries Law Enforcement Academy will therefore ensure that Fisheries Control Officers are comprehensively trained to deal with a wide set of scenarios and crimes.
The training covers basic and specialised training, including how to board a ship, crime scene management, the difference between inspection and investigation, and what happens when an inspection becomes an investigation. It also includes species identification, the use of technology in monitoring and surveillance, and technical issues such permits and quotas, and where rights may not be overstepped (or the courts will throw out the case on a legal technicality), as well as the legal aspects of international smuggling and human trafficking.
Prof van As believes that in South Africa the regulating, policing and law enforcement of fisheries vessels is too compartmentalized, and at the same time it is full of loopholes because of all the different players involved. Illegal fisheries vessels take advantage of this and are up to all the tricks. They’ll commit document fraud to under-report catches, fish illegally, and change their flags as countries only have jurisdiction on the high seas over vessels that fly their flags, or they will transfer illegally caught fish in the middle of the ocean from one boat to another.
To more effectively combat illegal fishing, he proposes that South Africa amends certain laws so that Fisheries Control Officers have extended powers and that their training equips them to recognise and respond to crimes on board vessels that are not related to fish, such as forced labour, human trafficking, smuggling and slavery.
One of the most recent high profile, international, white-collar fisheries crimes involving South Africa and the United States is as follows:
Businesspersons Arnold Bengis, his son David Bengis and their partner Jeffrey Noll, who were charged in 2013 in the international case, US versus Arnold Bengis et al,” he explains.
Arnold Bengis was the Managing Director and Chairman of Hout Bay Fishing Industries (Pty) Ltd in Cape Town, South Africa, and he also exercised control over Icebrand Seafoods, Inc. and Associated Sea Fisheries Inc. in Manhattan. Noll was the Chairman and President of both Associated and Icebrand in New York. David Bengis was the President of Icebrand Seafoods Maine Inc. in Portland, Maine.
From 1987 to August 1, 2001, the accused and their co-conspirators, engaged in an elaborate scheme to, among other things, harvest illegally large quantities of South and West Coast rock lobster, far in excess of applicable quotas, and then to export the illegally harvested lobster from South Africa to the Unite States.
Bringing them to book took time, but the United States Department of Justice, US Attorney’s Office, issued the following statement on 14 June 2013:
Mr Preet Bharara, the United States Attorney for the Southern District of New York, announced today that the United States obtained a restitution order against ARNOLD MAURICE BENGIS, DAVID BENGIS, and JEFFREY NOLL in the amount of nearly $29.5 million in favour of the Republic of South Africa. This is the largest known restitution order in a Lacey Act case in history.
The Lacey Act is a federal statute that makes it a crime to, among other things, import into the U.S. any fish, wildlife, or plants taken in violation of state or foreign law.
The defendants underreported the fish harvested to South African authorities and bribed South African fisheries inspectors to help them carry out their illegal harvesting scheme. They also submitted false export documents to South African authorities to conceal their overharvesting. As part of the scheme, the defendants arranged for previously disadvantaged South African citizens who did not have valid US working permits to work for low wages at their fish processing facility in Portland, Maine, where the employees were required to process, among other things, illegally harvested South African rock lobster.
Abuse of labour and slave labour is a common feature in international sea fisheries crime, as discussed in a feature titled ‘Slaves at Sea’ by Kotie Geldenhuys in the February 2016 issue of ‘Servamus’, a South African community-based safety and security magazine.
The introduction reads: Imagine a situation where you are working on a fishing vessel but when the captain gets tired of you, he simply sells you to another captain for profit. This scenario, and much worse, are the living realities of thousands of people working on remote fishing vessels as victims of human trafficking.
It goes on to explain that illegal, unregulated and unreported (IUU) fishing has been linked to numerous crimes, which violate the rights of vulnerable people:
Migrant labourers and fishers fall victim to human traffickers for the purpose of forced labour on board fishing vessels, rafts or fishing platforms, in ports or in fish processing plants. Women and children in fishing ports are vulnerable to organised sexual exploitation in the form of prostitution by fishers. There are also reports of women and children being kidnapped and kept on vessels for the purpose of sex.
Violence appears to be a common method of controlling labour. An article published by the Norwegian National Advisory Group Against Organised IUU-Fishing, describes how Cambodian boys were bussed from small, impoverished villages and towns after being promised decent wages. The reality is that they were taken to sea as prisoners and forced to fish for as many as 20 hours a day. Their captains forced them to take amphetamines in order to keep them awake. After the grueling fishing season, many were worn out, at which point they were shot and thrown into the sea.
The United States Trafficking in Persons Report (US Department of State, 2014) states that, along the coastline of sub-Saharan Africa, forced labour is more apparent on Asian and European-flagged fishing vessels seeking to catch fish in poorly regulated waters.
“What we need to face is that this level of cruelty and criminality is increasing, and that traditional legal approaches to combatting illegal fishing and the associated illegal activities have met with limited success,” says Prof van As.
“An alternative approach that is gaining momentum is to approach ‘illegal fishing’ as a transnational organised crime, and to investigate the policing, legal and policy implications of using transnational criminal law and procedure to strengthen fisheries law enforcement. The PescaDOLUS group is working on this.”