The first section of the Belgian code of criminal Procedure provides an explicit mechanism similar to forum non conveniens. 1 The federal prosecutor may dismiss a case if the investigation shows that in the interests of properly administering justice and Belgium’s international obligations, the complaint should be brought before international courts or the courts of the jurisdiction where the acts were committed, the courts of the perpetrator’s nationality or the courts of the place where the perpetrator is located, provided that the courts maintain independence, impartiality and fairness, particularly as the latter may highlight Belgium’s relevant international commitments in the alternative jurisdiction.
Deriving from Spanish jurisprudence, German law embodies a similar principle of subsidiarity with regard to serious violations of international humanitarian law. 2
In its rulings in Rios Montt and Fujimori, the Spanish Supreme court held that territorial jurisdiction takes priority over all other forms of jurisdiction “when several real and effective active jurisdictions exist”. 3 In the Fujimori decision, the Supreme Court held that in order to prosecute in Spain on the basis of universal jurisdiction, there must be “serious and reasonable evidence” showing that the offences “have thus far not been effectively prosecuted in the State with territorial jurisdiction”. 4 The article on the basis of which spanish courts had in the past exercised universal jurisdiction has today been limited to a specific number of situations. For instance, Article 23.5(a), (b) prevents spanish courts from exercising jurisdiction in situations where proceedings involving an investigation and the effectiveeffective prosecution of a criminal offence have been initiated within the jurisdiction of another country or in an international court. 5
Belgian, Spanish and German courts allow the use of the third criterion of “effective jurisdiction” to decline jurisdiction, even if the host State displays an unwillingness to genuinely prosecute the case. 6 The existence of a better forum in such a situation is but a theoretical possibility.
Trafigura Beheer Bv & Trafigura limited in côte d’Ivoire
The offloading of 500 tons of toxic waste in Abidjan (Côte d’Ivoire) by the ship Probo Koala during the night of 19-20 August 2006, had disastrous human and environmental consequences (for more information on the context of the case and the precise details, see Section II, Part I on extraterritorial corporate civil liability). The following companies were involved: Trafigura Beheer BV (the parent company based in the Netherlands), Trafigura Ltd. (its English subsidiary that chartered the ship), Puma Energy (Trafigura Beheer BV’s Côte d’Ivoire subsidiary), Société Tommy (an Abidjan marine supply firm specialised in emptying tanks, maintenance and bunkering) and Waibs Shipping (engaged by Trafigura to co-ordinate the Probo Koala ’s reception and waste disposal operations). They all face prosecution in Côte d’Ivoire, the Netherlands and France.
Court proceedings in Côte d’Ivoire
Following an investigation carried out by Côte d’Ivoire judicial authorities, several persons were charged, including Puma Energy’s representative, Waibs’ director, Tommy’s manager, and the co-founder of Trafigura, Claude Dauphin and his manager for Africa, Jean-Pierre Valentini, who were both arrested at Abidjan airport as they were leaving the country following a visit to establish the facts of the incident.
The two Trafigura representatives were held in custody from the time of their arrest on 18 September 2006 to 14 February 2007. On 19 March 2007, despite every indication of Trafigura’s liability, on whose account, and to whose benefit the toxic waste had been dumped, the Indictment Division of the Abidjan Court of appeal dropped the charges against Dauphin and Valentini, citing lack of evidence on the following grounds:
- concerning the charges of complicity in poisoning, “the investigation failed to reveal any act committed personally by the defendants Dauphin, Claude and Valentini, Jean-Claude.”
- concerning the violation of the law protecting public health and the environment from the effects of toxic and nuclear industrial waste and harmful substances, the Indictment Division of the Abidjan Court of appeal held that “the investigation showed that Dauphin, Claude and Valentini, Jean-Claude, had committed no reprehensible act, and that they had found themselves at the centre of these proceedings because they had travelled to Côte d’Ivoire of their own free will in order to help limit the damageable consequences of the acts committed by Ugborugbo Salomon Amejuma (the director of Tommy) and others.” 7
The charges against Puma Energy’s director were also dropped. The Indictment Division of the Abidjan Court of Appeal eventually sent twelve persons before the Assize Court for their involvement in the dumping of toxic waste. 8
The trial opened on 29 September 2008. On 22 October 2008, the Abidjan Assize Court recognised the toxic nature of the substances discharged and the danger they posed to human beings. The director of Société Tommy (which collected and unloaded the toxic waste) was sentenced to 20 years’ imprisonment. The Waibs employee who had referred Société Tommy to Trafigura’s Côte d’Ivoire subsidiary (Puma Energy) was sentenced to 5 years’ imprisonment. The State of Côte d’Ivoire was found to bear no responsibility for the criminal act. The customs officials, former harbour master and former director of the Affaires maritimes et portuaires had all been indicted but were acquitted. 9
Legal proceedings in France
On 29 June 2007, 20 Ivoirian victims, with the support of attorneys from the FIDH Legal Action Group (LAG), lodged a complaint with the Paris Prosecutor’s office against the management of Trafigura, Dauphin and Valentini, for dumping harmful substances, manslaughter, bribery and violation of the special provisions concerning cross-border movements of waste. 10
On 16 April 2008, the Vice-prosecutor of the “Public health – economic and social delinquency” division dismissed the case on the grounds that the proceedings were “entirely of foreign origin”, citing the following reasons:
- an absence of the accused persons’ permanent ties with French territory, namely Dauphin and Valentini, who were chairman and board member of the Trafigura group, respectively;
- the subsidiaries and commercial entities belonging to the Trafigura group were established outside of French territory; and
- the existence of other legal proceedings at the same time.
It should be noted that by virtue of the principle under which jurisdiction is based on the defendant’s identity, as laid out in Article 113-6 of the French Criminal Code, the perpetrators’ French nationality is sufficient to establish the jurisdiction of French courts. Whether the persons involved are domiciled in or have permanent links with French territory is of no significance. The other legal proceedings do not address the same acts or person and are thus also of no significance. See discussion supra on the meaning of nationality.
On 16 June 2008, attorneys cited Article 40-3 of the French Criminal Code to appeal the case’s dismissal on the grounds that the jurisdiction of French courts is established by the simple fact that the perpetrators hold French nationality. The appeal noted that any argument based on the existence of other ongoing proceedings or on the difficulty of carrying out investigations from France is void. On July 27, 2008 Mr Gino Necchi, Avocat general, confirmed the filing of an application for a judicial review of the decision to close the case under the number 2008/05998, however, as of june 2021, there has been no response.
Legal proceedings in the Netherlands
The criminal proceedings initiated in the Netherlands concern events that occurred in Amsterdam, prior to the dumping of toxic waste in Côte d’Ivoire 11 . They involve Trafigura, the captain of the Probo Koala and the City and Port of Amsterdam.
The trial was postponed several times. A hearing took place in May 2010 and will resume in September 2010. Trafigura is accused of violating European legislation on waste disposal, and is liable to a maximum fine of 450,000 Euros and/or six years’ imprisonment. Trafigura is also accused of falsifying documents relating to the composition of the waste, and of failing to inform APS (a Dutch-Danish waste recycling firm) of the toxic nature of the waste to be treated.
APS is accused of having unloaded and reloaded part of the Probo Koala ’s toxic cargo when it put in at Amsterdam in July 2006. When the waste turned out to be more toxic than announced, the charterer refused to pay for its treatment. Claude Dauphin, Trafigura’s CEO, has been charged with illegally exporting toxic waste.
On 19 December 2008, the Amsterdam Court of Appeal dismissed the criminal charges against Trafigura’s CEO. However, on 6 July 2010, the Dutch Supreme Court decided that Claude Dauphin could still be prosecuted, asking the Court of Appeal to deliver a new judgment as regards the prosecution of Trafigura’s CEO, considering that all the evidence had not been taken into account. On 30 January 2012, the Court of Appeal of Amsterdam decided that the Public Prosecutor may prosecute Trafigura’s president Claude Dauphin for leading the illegal export of the waste from the Probo Koala to Ivory Coast.
On 5 February 2009, APS was found guilty of breaking the environment protection laws, and fined 450,000 Euros. One of its former executives was sentenced to 240 hours’ community service, with a suspension of half of the sentence.
An important development in the proceedings occurred at a 19 May 2010 hearing before the Amsterdam Court of Appeal when Greenpeace produced testimony by the Ivorian truck drivers who had transported the toxic waste from the Probo Koala, asserting that Trafigura had paid them to make false statements during the civil proceedings in London (see Section II, Part I on corporate civil liability). 12 The trial began on June 2nd 2010.
On the July 23rd 2010, Trafigura was condemned to pay 1 million euro for EU shipments of waste Regulation and for failing to mention the type of transported waste. However, it was acquitted for forging of documents. Besides, the employee of Trafigura who had coordinated the stopover, Naeem Ahmed, was given a six-month suspended prison sentence and condemned to pay a fine of 25.000 euros; the Ukrainian captain of the cargo boat, Seriy Chertov, was given a five-month suspended sentence.
The public prosecutor’s department of Amsterdam, Trafigura and Naeem Ahmed appealed against this decision. On 1 July 2011, the Dutch Court of Appeal annulled the verdict against Naeem Ahmed on the basis that the Court of First Instance did not have jurisdiction. 13 The Public Prosecutor has appealed this decision. The 23 December 2011 the Amsterdam Court of Appeal upheld the €1 million fine against Trafigura. However it confirmed that the municipality of Amsterdam was imune to prosecution. An appeal to the Supreme Court was subsequently filed. On 24 September 2013 the Supreme Court’s decision was ultimately confirmed. “The municipality possessed immunity from prosecution in this case, since it was acting in accordance with an exclusive government task. 14
Trafigura and the Public prosecutor’s department of Amsterdam both lodged an appeal against the decision of the 23rd of July 2010 as regards the facts that took place in the Netherlands. The Public prosecutor’s department of Amsterdam asked the Court to reconsider on the discharge concerned the city of Amsterdam, the port manager, and the APS company, responsible for waste treatment, and required the payment by Trafigura of a €2 million fine. The appeal trial opened on the 14th of November 2011. Concerning the individual responsibility of Claude Dauphin, president of Trafigura, the court decided, on January 30th, 2012, that Claude Dauphin could be prosecuted for the alleged illegal export of waste by Trafigura. However, no decision on the merits was reached, since the Dutch Public Prosecutor’s Office and Trafigura reached an out-of-court settlement in November 2012. Trafigura agreed to pay €300,000 compensation and paid a €67,000 fine in return for the withdrawal of the case against Claude Dauphin.
In 2015, the Stichting Union des Victimes de déchets Toxiques d’Abidjan (UVDTAB), representing 110,937 Ivorians have called upon Trafigura in respect to a new lawsuit in The Hague for causing “bodily, moral and economic injuries to the plaintiffs. They ask for the payment of €2,500 in compensation, as well as the cleaning of the waste.” 15 The lawsuit was finally dismissed in 2018 by the Court of appeal in Amsterdam which found there was an irreversible procedural error made by the UVDTAB. However, in 2016, the Fondation Stichting Victimes des déchets toxiques Côte d’Ivoire (VDTCI) also brought a civil proceeding against Trafigura before the District Court of Amsterdam seeking financial compensation. Even if this claim was first dismissed on 2018 by the District Court of Amsterdam, an appeal made by VDTCI was accepted by the Amsterdam Court of Appeal in 2020, which has declared the Dutch judge competent to hear the request for Trafigura to answer for their actions regarding the dumping of waste from the Probo Koala in Abidjan 16 . (See more details in Section II, Part I on corporate civil liability).
Prosecutions based on universal jurisdiction still face strong resistance from countries unwilling to take on the political and diplomatic costs of such cases. This is especially true when complaints target companies on their territory, resulting in a threat that the companies will relocate. Following two complaints filed in Belgium against multinational companies and their directors for serious human rights violations, the Federation of enterprises in Belgium denounced the Belgian Law of 16 June 1993 as rendering Belgium an inhospitable climate for companies doing business in different parts of the world. The scope of the law’s application was largely reduced, and the court declined jurisdiction in the complaint against Total in Burma.
The technical difficulties resulting from domestic legal rules on corporate criminal liability and extraterritoriality should not be overlooked.
An appropriate conventional framework is “required in order to provide the legal certainty necessary to dispense justice at the international level” 17 and to ensure the feasibility of prosecutions. Although companies that commit serious international crimes should be investigated and prosecuted without waiting for victims to complain, this has never been the case. The role of victims and the NGOs that support them is crucial.