the toxic truth - Greenpeace

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the toxic truth the criminal acts that resulted in the human rights abuses committed in Côte d’Ivoire. Criminal charges were only ever brought against employees of the Trafigura Group in Côte d’Ivoire, but not against the corporate group. Gaps in Ivorian law meant that there was no option to prosecute the company itself. Options to prosecute officials who acted in a decision-making capacity were also not properly exercised because of the terms of the settlement reached between the government and Trafigura and the departure of the concerned individuals from the country. No other state has pursued prosecutions against any of the corporate entities involved in the criminal acts in Côte d’Ivoire.. This means that, up to now, the Trafigura Group, including the foreignbased Trafigura Beheer BV and Trafigura Ltd, are yet to be prosecuted for their involvement in the illegal acts that unfolded in Côte d’Ivoire. The terms of the Ivorian settlement make it very unlikely (it not impossible) for any other prosecutions against members of the Trafigura Group to be brought in the state of Côte d’Ivoire. This means that, should the corporate members of the Trafigura Group ever be brought to account for the commission of crimes in Côte d’Ivoire, this must happen in one of the home states. In the Netherlands, Trafigura Beheer BV was charged with committing domestic offences but not for the full chain of events culminating in the dumping of the waste by its agent in Côte d’Ivoire and the effects of the illegal transport and dumping of toxic waste on people in Abidjan. To the contrary, the Public Prosecutor has refused to pursue charges against two corporate entities of the Trafigura Group for illegal acts committed in Côte d’Ivoire, and this decision has been upheld by the Dutch Court of Appeal. In the United Kingdom, no prosecution has yet been brought against UK-based Trafigura Ltd, despite its executives making key decisions which led to the dumping of the waste in Côte d’Ivoire. These reflect failures by both states to fulfil their duty to protect and to properly investigate the role played by the corporate members of the Trafigura Group with respect to the acts committed in Côte d’Ivoire. Without coordinated action by states to investigate and hold multinational companies to account, impunity will prevail. In this case, three possible levels of accountability existed. Where domestic laws permit, corporate entities should be held accountable for causing or contributing to criminal acts. In addition (or in instances where it may not be possible to hold the corporate entity to account), individuals in decisionmaking positions or positions of control and influence should be held accountable for allowing the illegal acts to occur. Moreover, employees found to be directly involved in the commission of illegal acts carried out during corporate operations should be legally held to account. Evidence exists which could have been used to tap into international channels to investigate the involvement of foreign-based actors in criminal activity relating to the toxic waste dumping. In Côte d’Ivoire, charges against the three Trafigura executives, Dauphin, Valentini and Kablan, were dropped, with the judge citing “insufficient evidence”. This occurred despite evidence existing that there were viable grounds for pursuing the charges. The reality is that this was a result of the tradeoff reached between the Ivorian government and the Trafigura Group in light of the Ivorian settlement reached one year earlier which, effectively, provided legal immunity to all Trafigura associated individuals and corporate entities. In the Netherlands, both Trafigura Ltd’s Naeem Ahmed and the Probo Koala’s Captain Chertov received suspended sentences and Ahmed was fined €25,000 by the Dutch court. Appeals related to the case are ongoing. In France, the public prosecutor decided not to pursue investigations into French nationals, Dauphin and Valentini, due to reasons including the prosecution in Côte d’Ivoire. This is despite the prosecution 173 Chapter 14
174 Amnesty internAtionAl And greenpeAce netherlAnds Chapter 14 in Côte d’Ivoire having been discontinued, and Trafigura Parties, including employees, enjoying de facto legal immunity in that country. These facts collectively show that, neither the corporate Trafigura Group nor the individuals have ever faced charges for the events that unfolded in Côte d’Ivoire. In the Netherlands, the legal framework exists for prosecuting illegal acts committed abroad, but in this case the prosecutorial desire to pursue these did not exist. The UK prosecutor, as far as is publicly known, has done nothing, and no steps have been taken either to investigate or to prosecute the company in the UK. Failure to co-operate to compel Trafigura to disclose the information that it holds, on the content of and the effects of exposure to the waste, to the victims and to ensure monitoring and disclosure of any potential long-terms impacts of exposure to the waste None of the states involved have so far required Trafigura to disclose to the victims the information that it holds on the content of the waste and effects of exposure. The lack of information about the content of the waste and its effects handicapped the medical response in Côte d’Ivoire. Lack of information, particularly about potential long-term effects, has also been highlighted by the victims as one of their primary concerns. Trafigura was not asked to disclose all the information that it holds, on the content of the waste and its own research into potential effects, to victims by the Ivorian government during the settlement process or after. Despite the fact that Trafigura noted in the civil case in the UK that it held information on the composition of the waste and its potential impacts and that it had undertaken scientific and expert studies about exposure to the waste, the UK authorities have never asked for this information to be made available to the victims or to the Ivorian authorities. Instead of treating this as a key issue impacting people’s right to health, it has been treated as purely a private matter between parties in a civil dispute, and the failure to compel the company to reveal the information it holds is also linked to the UK’s broader failure to open any investigations itself into the company’s conduct. The Ivorian government has also failed to conduct any long-term monitoring of impacts of exposure to the waste, particularly in terms of environmental and health related effects. However, none of the other governments involved have engaged in international cooperation with the Ivorian government to support such a monitoring process, including through offering technical assistance. Failure of international co-operation Even though this particular case involves the transboundary movement and illegal dumping of toxic waste, despite the existence of a specific regime to prevent such occurrences, the failures that were documented in this case are emblematic of those faced by victims of human rights abuses by multinational companies in many other contexts. In moving forward, greater steps are required to end corporate impunity. The bottom line is that prosecutors, law enforcers and ministries of justice must take steps to prosecute and make it clear that corporate entities and directors will be held to account if they commit illegal acts, which abuse human rights, both domestically and abroad. In this situation, the legal breach is clear, however, what has been done about it is not. When the rules that are in place are not enforced, or when mechanics of enforcement are insufficient, the human cost is significant and the framework of hardwon international law is undermined. Without adequate legal enforcement mechanisms holding corporate entities to account for their actions, victims will continue to be denied their right to an effective remedy and failed by states.
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