the toxic truth - Greenpeace

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the toxic truth The limiTs of jusTice inTernaTionally – The neTherlands and The uniTed Kingdom “ Why do the big industrialized countries who know [that the waste is toxic] dump in a country which has no treatment structure: it’s a nastiness. We are treated like we have no value, we don’t know anything … one can take advantage of us. ” GeneviÈve Diallo, Resident of Akouédo 672 In addition to the legal efforts made in Côte d’Ivoire, criminal prosecutions and a civil action were initiated in the Netherlands and the United Kingdom respectively, based on different legal breaches. 673 These legal actions expose the challenges involved in pursuing justice in cases involving a multinational corporate group and where the chain of events spans multiple jurisdictions. A successful but limited criminal prosecution in the Netherlands On 26 September 2006 Greenpeace filed a report with the Dutch Public Prosecutor requesting that a criminal investigation be instigated into offences relating to the dumping of toxic waste in Côte d’Ivoire. In June 2008, the Dutch Public Prosecutor brought charges relating to the illegal export The lawyers for Trafigura Beheer B.V. and a London based executive in the court in Amsterdam. © ANP/MARCEL ANTONISSE of waste from the Netherlands to Africa as well as other criminal offences, against Dutch-based Trafigura Beheer BV, Naeem Ahmed, one of Trafigura Ltd’s London-based executives, and Captain Chertov of the Probo Koala. Charges were also brought against Amsterdam Port Services (APS) and its director in relation to breaches of the Environmental Management Act. The Municipality of Amsterdam was charged with being a party to the transfer of hazardous waste to the Probo Koala or, alternatively, with giving APS permission to transfer hazardous waste back on to the Probo Koala. 674 Two years later, on 23 July 2010, the Dutch Court of First Instance handed down guilty verdicts on a number of counts. Trafigura was found guilty of violations of the European Waste Shipment Regulation (EWSR) and of delivering and concealing hazardous goods. Naeem Ahmed was found guilty of delivering hazardous goods while concealing their hazardous nature. And the captain of the Probo Koala was found guilty of complicity in forgery regarding the information provided on documents relating to the ship’s waste, and complicity in the delivery of hazardous goods. APS and its director were found to have violated the Dutch Environmental 155 Chapter 13
156 Amnesty internAtionAl And greenpeAce netherlAnds Chapter 13 Management Act by transferring the waste back to the Probo Koala from the APS barge. 675 However, the court also found that APS had “made an excusable error of the law” because it was entitled to rely on the advice provided by the Environment and Buildings Department of the Amsterdam Municipality (DMB) with respect to permission to return the waste to the Probo Koala. 676 On that basis, the court accepted an “absence of all guilt” defence put forward by APS. 677 The guilTy verdicTs – amsTerdam courT of firsT insTance Charge 1: Exporting waste from an EU country to an ACP state in violation of Section 18 of the European Waste Shipment Regulation (EWSR) 678 Trafigura Beheer BV was found guilty of exporting waste on board the Probo Koala to an ACP (African, Caribbean, and Pacific Group of States) state in contravention of Section 18 paragraph 1 of the EWSR. The court rejected Trafigura’s defence that the waste generated on board the Probo Koala was the result of normal operations of a ship. Furthermore, the court stated that the export of the waste had been done with “malicious intent”. 679 Trafigura raised a number of other defences which were rejected by the court, including the following. Trafigura argued that the charge that it had exported waste to Côte d’Ivoire could not be proven since there were no plans to export the waste to Côte d’Ivoire when the Probo Koala was in the Netherlands, and since the export effectively ended when the Probo Koala entered the territorial waters of an ACP state, Mauritania or Togo. 680 This argument was rejected by the court, which held that the “act of export must be viewed as a whole” 681 and that it began in the Netherlands and ended in Côte d’Ivoire. Trafigura argued it had committed an excusable error of law by assuming that the waste fell under MARPOL and that its ignorance of the law should be a mitigating factor. The court rejected this argument, since Trafigura showed no specific circumstances that could justify the defence: “ The defence has put forward that Trafigura was absent of all guilt since it assumed that the slops did not fall under the eWSR, but instead, under MaRPol. This appeal to an excusable miscarriage of justice does not hold. after all, invoking an absence of knowledge of the law can only benefit a suspect under special circumstances, and Trafigura has not put forward this type of special circumstance. ” 682 Charge 2: Delivering goods which [to their knowledge] presented a hazard to life or health and concealing the hazardous nature of the goods (contrary to section 174 of the Dutch Penal Code) Trafigura Beheer BV and Captain Chertov were also found guilty of having “delivered goods to APS which, to their knowledge, presented a hazard to life or health, and of having concealed the hazardous nature of the goods,” contrary to section 174 of the Dutch Penal Code. Trafigura’s London-based executive Naeem Ahmed was held to have “provided the actual supervision for this act.” 683 Charge 3: Forgery (Contrary to Section 225 of the Dutch Penal Code) The court found Captain Chertov guilty of being complicit in forgery under Section 225 of the Dutch Penal Code. 684 In order to discharge the waste at Amsterdam, Captain Chertov had to complete a form called “Notification of ships waste and (remainders of) noxious substances”. Captain Chertov noted on the form that the waste consisted of “tank washings”. The court held that he “knew the waste was not just tank washing water”, because he had been “involved in the washing operations from beginning to end”. 685 Trafigura and Ahmed were acquitted of involvement in the forgery on the basis that the single piece of evidence against them (the captain’s statement, which had indicated involvement on the part of Trafigura) was considered insufficient. 686 During the court proceedings Trafigura’s defence acknowledged the fact that the company had instructed the captain of the Probo Koala not to disclose the existence of the waste in Tunisia, and argued that the absence of a similar email in relation to the events of Amsterdam proved that Trafigura was not involved in forgery in Amsterdam and that it was the captain’s own decision to fill in the papers in the way he did.
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