the toxic truth - Greenpeace

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