Elephants, cyanide and the Chemical Weapons Convention

Posted by () on Oct 24 2013
VERTIC Blog >> National Implementation Measures
Dominic Bright, London
News that cyanide was intentionally used in an illegal venture to harvest ivory through poisoning salt pans, where elephants gather to drink in the current dry season, made for melancholy reading indeed, chronicling Zimbabwe’s worst case of elephant poaching. What does the use of a toxic substance to poison wildlife in Hwange National Park, including 100 elephants, have to do with domestic legislation implementing Zimbabwe’s obligations under the Chemical Weapons Convention (‘CWC’)? After all, there are no confirmed instances of cyanide in perhaps its most toxic form being used in chemical warfare; and three individuals have been successfully sentenced under existing legislation.
Zimbabwe has signed and ratified the CWC, which entered into force in April 1997. It obliges ‘any activity prohibited to a State Party’ to be proscribed to persons at the national level. The ‘use’ of a ‘chemical weapon’ is one such activity; and ‘chemical weapon’ means any toxic chemical, except when it is intended for peaceful purposes and its type and quantity are consistent with that purpose. Following Article II, ‘toxic chemical’ means ‘any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.’ Fauna are therefore within the scope of this definition.
The evidence from officials is that the toxic substance used to poison the salt pans – sodium or calcium cyanide – is used in, destined for, or a product of, the gold mining industry. At the time of writing, we do not know the exact chemical form that was used in Zimbabwe. However, both sodium cyanide and calcium cyanide are used in gold processing and are inorganic cyanides that are toxic to humans and animals. There can be no question that the use made of the toxic substance was not legitimate and so would have fallen foul of any national measure Zimbabwe would have taken to implement the CWC, in accordance with Article VII of the Convention.
Implementing legislation for the CWC equips prosecutors in circumstances where current legislation is silent or to reflect the gravity of the harm caused. The former bites in the speculative scenario that a similar toxic chemical is released to harm animals at a future date other than within a national park. One of the (two) provisions successfully prosecuted would be inapplicable if the proscribed act – ‘discharge of hazardous substances, chemicals and materials’ as per s.73 of the Environmental Management Act – were commissioned outside of a national park.
The second, principled, reason is that from a criminal justice standpoint, the accused should be tried and sentenced for offence(s) that reflect and reasonably convey the harm for which culpability exists. One of those successfully sentenced was jailed for 15 years for an offence related to poaching and possession of ivory – s.128 of the Parks and Wildlife Act, contained in No. 5 of the General Law Amendment Act, 2011 – and only one year to mark that a toxic substance had been willfully released.
However, there is a qualitative and quantitative distinction – and one correctly drawn by the Public Relations Manager of the Zimbabwe Parks and Management Authority – between traditional (snare and shot) and the more recent, indiscriminate, modus of poaching. The difference in quality between shot and poison has long been reflected throughout national criminal legal systems worldwide – as well as by the laws and customs of war. Moreover, in the case of poison, the rangers are denied the first visible sign of death. Soaring vultures are often nature’s first means by which to indicate animal fatality, and so also killing by illegal modus. In the instant case vultures, too, have been poisoned, thereby depriving park rangers of nature’s first indication of death, in this case by proscribed means.
The difference of scale, of course, is that of the indiscriminate nature of employing toxic chemicals to harm – and overwhelm – animals. Rather than traditional shot, which can be discriminating if employed surgically, toxic chemicals are inherently indiscriminate, striking down species as diverse as elephants and vultures all too effectively and with cold efficiency. There is, then, a principled reason for the sentence to adequately reflect the gravity of the harm caused by the intentional use of a toxic chemical. 

Last changed: Oct 24 2013 at 3:31 PM