the toxic truth - Greenpeace

130 Amnesty internAtionAl And greenpeAce netherlAnds
Chapter 11
ivoriAn lAw
The Law relating to the protection of Public Health and
the Environment against the effects of toxic and nuclear
industrial waste and harmful substances (Loi No. 88651
du 07 juillet 1988 portant protection de la Santé Publique
et de l’Environnement contre les effets des déchets
industriels toxiques et nucléaires et des substances
nocives) 577
Article 1 of this law prohibits: “all acts relating to the …
import, transit, transport, deposit … of toxic and nuclear
industrial waste and hazardous substances”. Article 3
further provides that, when the offence is committed
in the context of corporate activity, criminal liability is
incumbent on any person “assigned or not, who by their
function, has the responsibility for managing, monitoring
or controlling this activity”.
The act goes on to say that: “When the offence is committed
in the course of a business activity, the criminal responsibility
rests with the individual, who through his or her
functions, is responsible for the management, supervision
or control of that activity.”
The Environmental Code
(Framework law No. 96-766 of 3 October 1996)
Article 99 prohibits illegal import of waste. Article 101
of the Code states that the penalty for whoever engages
or provides for the “import, transit, storage, burying or
spillage on the national territory of dangerous waste” or
“executes an agreement to authorize such activities” is
a prison sentence of 10 to 20 years and a fine. The court
can also order the seizure and elimination of such waste
at the cost of the owner. 578 The Act also states: “Whoever
shall proceed to or arrange for the purchase, sale, import,
transit, storage, landfill or dumping on the national territory
of hazardous wastes or sign an agreement for the
authorization of such activities shall be punished…”
The Ivorian Criminal Code
Article 342(4) of the Ivorian Criminal Code makes
poisoning a criminal offence. The Code also sets out a
definition of an accessory to a crime. Several of those
involved in the import and dumping of the waste in Abidjan
were charged with poisoning.
Salomon Ugborogbo, the head of Compagnie
Tommy, was charged with offences relating
to poisoning and with offences under
public health and environmental law. 579
Claude Dauphin, Chairman and co-founder
of Trafigura’s Dutch parent company, and
Jean-Pierre Valentini, director of the West
Africa Trafigura Group, were arrested when
they flew into Abidjan in the aftermath of the
dumping. 580 They, along with N’zi Kablan of
Puma, were detained in Abidjan’s MACA prison.
N’zi Kablan was charged with poisoning while
Claude Dauphin and Jean-Pierre Valentini
were charged with being accessories to
poisoning. All three Trafigura employees
were charged with offences under the Law
relating to the protection of Public Health
and the Environment against the effects
of toxic and nuclear industrial waste and
harmful substances (Public Health Law),
and breaches of the Environmental Code.
When first arrested, they were also charged
with domesticated offences under the Basel
Convention. 581
The prosecutor was able to bring charges
against the executives and employees of
the various companies, but not against the
corporate entities themselves. Under Ivorian
law, legal entities cannot be held criminally
liable for these specific offences. 582 This
presents legal challenges for any prosecutor;
in seeking to hold individuals criminally
liable within a corporation, the prosecutor
must “pierce the corporate veil” – look
behind the legal entity at the roles played
by specific individuals in order to allocate
responsibility. This can be very challenging
in practice, particularly when there is a lack
of transparency with respect to corporate
decision-making processes or when the crime
itself is the cumulative result of a number of
decisions (or failed decisions) and, therefore,
blame cannot be allocated to one specific
individual. In these instances, employees are
often able to hide behind the shield of the
corporation, and multinational companies