the toxic truth - Greenpeace

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the toxic truth 131 Chapter 11 MACA Prison, February 2009. This is where Trafigura executives were held in pre-trial detention until February 2007, when Trafigura reached a financial settlement with the state of Côte D’Ivoire. © amNesty iNterNatioNal
132 Amnesty internAtionAl And greenpeAce netherlAnds Chapter 11 are able to use the complexity of their organization, networked firms and long supply chains to escape legal responsibility. Under the Ivorian Public Health Law, a provision exists for establishing supervisory liability for illegal acts carried out during corporate activity. Article 3 states that, when carried out within the context of corporate activity, liability should fall on any person “assigned or not, who by their function, has the responsibility for managing, monitoring or controlling this activity”. 583 The provision suggests a two-step analysis: firstly determining whether or not the conduct was carried out within the context of corporate activity, and secondly identifying those who have management, monitoring or controlling responsibilities for the activity in question. While broadening criminality for this offence to individuals who are in a supervisory role, this still requires that the prosecutor look behind the corporate veil in order to be able to identify those who are in the relevant positions of authority. No charges were laid by the prosecution against Jorge Marrero and Paul Short of the Trafigura Group, even though the National Commission found that the two “…could not ignore the Tommy company’s technical incapacity”. 584 Although these two men were not physically present in Côte d’Ivoire, legal and diplomatic action could have been taken to make them appear before a court there. In light of the findings of the National Commission, it is not clear why the Ivorian authorities did not take action to bring Jorge Marrero and Paul Short to account. On 22 December 2006, approximately three months after they had first been detained, the two French Trafigura executives Claude Dauphin and Jean-Pierre Valentini, obtained a court order granting them provisional release on bail. However, the Ivorian Public Prosecutor immediately appealed this order and, as a result, the two executives remained in detention pending a determination being made of the appeal. They remained in detention in MACA corporATe culpAbiliTy A sufficient legal deterrent must exist in order to stop corporate actors from causing or contributing to illegal activities which lead to human rights abuses. In theory, three levels of culpability are possible when prosecuting illegal conduct which is committed during the course of corporate activity. The first level is proving the culpability of the corporate entity. This is possible when domestic legal systems, through their criminal, penal or administrative codes, explicity recognize that legal persons, such as corporations, can be held legally responsible for the illegal act which is committed. In these scenarios, it is likely that the mental element (mens rea) required for establishing the guilt or innocence of the legal person will be clearly defined. This is beneficial in that it clarifies the threshold of legal liability for the corporate entity, and also provides clarity with respect to attaining legal redress through the courts. A second level of culpability involves proving supervisory responsibility for the illegal act which has been committed. This means that individuals in decision-making positions or positions of control and influence should be held accountable for allowing the illegal acts to occur. This can be facilitated by specific legal provisions in domestic law which clearly state that corporate officers who are in positions of control, influence and/or management in relation to the illegal activity, such that they should have known about and/or prevented the illegal activity from happening, are accountable. A third level of culpability involves proving the legal responsibility of all other individuals, agents or employees who were either indirectly or directly involved in the commission of the illegal act which was committed in the course of corporate activity. In situations where the domestic law does not recognize the legal liability of legal persons for the illegal act committed, such as in Côte d’Ivoire, it is essential that adequate legal provisions be in place to ensure that culpability can be established at the second and third levels. prison until 14 February 2007, which was the day after a legal settlement was entered into by the Trafigura Group and the state of Côte d’Ivoire. The criminal investigations into the toxic waste dumping continued until October 2008. In addition to the criminal charges, victims, associations and the government attached themselves to the prosecution as “parties civiles” seeking damages. 585
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