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West Africa: Toxic Waste, Failed Accountability
AfricaFocus Bulletin
Oct 12, 2012 (121012)
(Reposted from sources cited below)
Editor's Note
"This is a story of corporate crime, human rights abuse and
governments' failure to protect people and the environment.
It is a story that exposes how systems for enforcing
international law have failed to keep up with companies that
operate trans-nationally, and how one company has been able
to take full advantage of legal uncertainties and
jurisdictional loopholes, with devastating consequences." -
Greenpeace Netherlands and Amnesty International, in a
comprehensive report on the 2006 dumping of toxic waste in
Abidjan
The report, the result of a three-year investigation,
concluded that "despite the numerous efforts that were made,
there has been a collective failure by all the states
involved to ensure the right to an effective remedy for the
victims." Although more than 100,000 people in Abidjan were
affected, and some 30,000 were awarded damages in a civil
case in the United Kingdom. many victims received no
compensation, the companies involved have still not released
full details of what happened, and there have been no
appropriate legal penalties for the individuals or corporate
entities responsible.
This AfricaFocus Bulletin contains brief excepts from the
detailed 232-page investigative report. The full report,
including a detailed chronology, maps, and legal background,
is available at http://tinyurl.com/8uuqsqy or
http://www.amnestyusa.org/research/reports/the-toxic-truth
For previous AfricaFocus Bulletins on environmental issues,
visit http://www.africafocus.org/envexp.php
++++++++++++++++++++++end editor's note+++++++++++++++++
The Toxic Truth: About A Company Called Trafigura, A Ship
Called the Probo Koala, and the Dumping of Toxic Waste in
Côte d'Ivoire
Greenpeace Netherlands / Amnesty International
September 25, 2012
{Brief excerpts from full report. Full report available at
http://tinyurl.com/8uuqsqy or
http://www.amnestyusa.org/research/reports/the-toxic-truth]
On the morning of 20 August, 2006 the people of Abidjan,
Côte d'Ivoire, woke up to find that foul-smelling, toxic
waste had been dumped in numerous places around their city.
Tens of thousands of people suffered from nausea, headaches,
breathing difficulties, stinging eyes and burning skin. They
did not know what was happening; there was wide-spread
panic. Health centres and hospitals were soon overwhelmed.
International agencies were drafted in to help overstretched
local medical staff. More than 100,000 people were treated,
according to official records, but it is likely that the
number affected was higher as records are incomplete.
The waste that was dumped in Abidjan in August 2006 belonged
to an oil trading company called Trafigura. It arrived in
the country on board a cargo ship, the Probo Koala,
chartered by Trafigura. The waste originated in Europe and,
under international law, should not have been permitted to
arrive in Côte d'Ivoire.
This report is the culmination of a three-year investigation
by Amnesty International and Greenpeace Netherlands into the
dumping, the events that led to it, and the action taken in
response to the dumping. ...
It exposes how failures by the Netherlands and decisions
made by a private company in the United Kingdom contributed
to the disaster that unfolded in Côte d'Ivoire. It calls for
far more robust action by governments to investigate, punish
and redress corporate crimes that lead to human rights
abuses and environmental damage. The report lays out a clear
case for the legal responsibilities of governments beyond
their own borders and demonstrates how the exercise of
extra-territorial jurisdiction in specific cases and
contexts is vital to ensure that human rights are protected
and those responsible for criminal acts are held to account.
The report argues for stronger action to hold Trafigura to
account for the dumping of the waste in Abidjan, and for the
full realization of the human right to an effective remedy
for the victims of the toxic waste dumping.
About a Company Called Trafigura, A ship called the Probo
Koala, and the Dumping of Toxic Waste in Côte d'Ivoire
This is a story of corporate crime, human rights abuse and
governments' failure to protect people and the environment.
It is a story that exposes how systems for enforcing
international law have failed to keep up with companies that
operate trans-nationally, and how one company has been able
to take full advantage of legal uncertainties and
jurisdictional loopholes, with devastating consequences.
For the people at the centre of the story - the people of
Abidjan in Côte d'Ivoire - it starts with horror and ends in
tragedy. It began on 20 August 2006 when they woke up to
find that foul-smelling, toxic waste had been dumped in
numerous places around their city.
Tens of thousands of people suffered from nausea, headaches,
breathing difficulties, stinging eyes and burning skin. They
did not know what was happening; they were terrified. Health
centres and hospitals were soon overwhelmed. International
agencies were drafted in to help overstretched local medical
staff. More than 100,000 people were treated, according to
official records, but it is likely that the number affected
was higher as records are incomplete. The authorities
reported that between 15 and 17 people died.
With medical treatment and time, the symptoms abated, but
for many the fear remains. Six years on, they still do not
know what was in the waste. It had been illegally exported
from Europe, illegally brought into Abidjan, and illegally
dumped there. Numerous laws - both national and
international - had been ignored.
A three-year investigation by Amnesty International and
Greenpeace has uncovered the central reason for the tragedy
that unfolded in Abidjan: in the absence of effective law
enforcement, one company acted to secure corporate profit
without regard for the human and environmental costs. That
company was Trafigura.
Trafigura made the toxic waste on board the Probo Koala.
Trafigura knew the waste would be dangerous and require
careful treatment and disposal, but it refused to pay for
proper disposal when this option was offered in the
Netherlands. Trafigura knew - or should have known - that
the waste should not be shipped out of Europe and that the
company it handed the waste over to was incapable of dealing
with it properly. Trafigura knew the waste was to be
disposed of in a city dump. And Trafigura gave false or
misleading information about the waste to the state
authorities and waste-processing companies in several
countries.
Although Trafigura was convicted in a Dutch court of
illegally exporting the waste from the Netherlands, the
company was given immunity from prosecution in Côte
d'Ivoire. Trafigura claims the dumping and its aftermath
were not its fault. The investigation undertaken by Amnesty
International and Greenpeace concludes that Trafigura's
claim lacks credibility. The investigation also establishes
that many governments contributed to the tragedy by failing
to uphold international human rights and environmental law
and the law of the sea. They continue to fail to take
adequate measures to prevent such corporate crimes in
future, to redress the suffering of the victims, or to hold
the perpetrators to account.
Such failures entrench impunity for corporate crimes.
Although Côte d'Ivoire responded quickly to the crisis, the
then government gave Trafigura sweeping legal immunity from
prosecution in exchange for a financial settlement. The
Netherlands - the country in the best position to act to
ensure that Trafigura's waste was dealt with properly -
failed to act lawfully and contributed to the violation of
the right to health of the people of Abidjan. Trafigura
Ltd., a company based in the UK that directed the operations
on board the Probo Koala at several critical points, has
never been investigated or prosecuted by the UK authorities.
Just as the Probo Koala sailed around the seas of Europe and
West Africa with its toxic cargo, Trafigura has sailed
around the law, evading international law and exploiting
jurisdictional uncertainties.
The nightmare inflicted on the people of Abidjan still
haunts many people today. The persistent failures - to hold
the company fully to account, to disclose information and to
ensure compensation reaches all those who are entitled to it
- mean that the toxic waste dumping at Abidjan is not only a
crime committed back in 2006 but an ongoing travesty of
justice today.
Key Facts of the Case
In late 2005, a multinational trading company called
Trafigura decided to buy large amounts of an unrefined
gasoline called coker naphtha. Trafigura intended to use the
coker naphtha as a cheap blendstock for fuels, but first
needed to find a way of refining it. This was done through
an industrial process called
caustic washing, initially carried out on land, but later at
sea, on board a ship named Probo Koala.
Internal Trafigura email communications which came to light
during court proceedings in the UK in 2009 confirm that the
company was aware before starting the caustic washing
process that the resulting waste would be hazardous and
difficult to dispose of. In June 2006, after several
unsuccessful attempts
to dispose of the waste, Trafigura contacted a Dutch
company, Amsterdam Port Services (APS), and arranged to
deliver the waste in Amsterdam. The Probo Koala arrived in
Amsterdam on 2 July 2006, and APS began to unload the waste
on to one of its barges. However, a terrible stench
emanating from the waste led APS to test it. They found it
was far more contaminated than they had thought, and raised
the price for treatment, from Euro27 per m3 to Euro1,000 per
m3.
Trafigura rejected this new quote and asked for the waste to
be reloaded on to the Probo Koala. After much discussion
between the Dutch authorities, this was agreed to, despite
the fact that the destination of the waste was unknown.
On 19 August 2006, with the waste still on board, the Probo
Koala arrived in Abidjan in Côte d'Ivoire. Trafigura
proceeded to contract a newly licensed company, called
Compagnie Tommy, to dispose of the waste at a local
dumpsite. There was no mention, in the handwritten contract
with Tommy, of treating the waste to make it safe. The waste
was unloaded into trucks and taken to the dumpsite; however,
concerns about the smell led the site to close. Truck
drivers then dumped the rest of the waste at approximately
18 different locations around the city of Abidjan. 888On 20
August 2006, the population of Abidjan woke up to the
appalling effects of the dumping. Tens of thousands of
people experienced a range of similar health problems,
including headaches, skin irritations and breathing
problems. A major medical emergency ensued.
In September 2006 two Trafigura executives, who had arrived
in Abidjan following the dumping, were charged with offences
relating to breaches of Ivorian public health and
environmental laws, as well as poisoning or being
accessories to poisoning. Other individuals, including a
number of Ivorian port and customs officials, and the head
of Compagnie Tommy, were also charged with offences relating
to the dumping.
On 13 February 2007 Trafigura and the government of Côte
d'Ivoire reached a settlement, under which Trafigura agreed
to pay the state of Côte d'Ivoire the sum of CFA95 billion
(approximately US$195 million), and the government waived
its right to prosecute or mount an action against the
company. Neither Trafigura nor any of its executives were
brought to trial in Côte d'Ivoire. Ultimately, only two
individuals were convicted by a court in Abidjan: Salomon
Ugborogbo, the head of Compagnie Tommy, and Essoin Kouao, a
shipping agent from West African International Business
Services (WAIBS).
In June 2008, the Dutch Public Prosecutor brought charges
against Trafigura Beheer BV and a number of other parties
for the illegal export of the waste from the Netherlands to
Africa. On 23 July 2010, the Dutch court handed down a
guilty verdict on a number of counts against Trafigura
Beheer BV, a London-based executive of Trafigura Ltd. and
the captain of the Probo Koala. The guilty verdict against
Trafigura Beheer BV was upheld by the Dutch Court of Appeal
in December 2011.
The role played by Trafigura in relation to the dumping of
toxic waste in Abidjan has never been subject to a full
court proceeding.
A large portion of the settlement amount paid to the state
of Côte d'Ivoire was supposed to be allocated as
compensation to the victims and for clean-up. As of July
2012, clean-up was reported to be complete, but questions
remain about the adequacy of the process in some of the
affected areas. The status of the compensation fund is
unclear, but thousands of people whose health was affected
could not access the government compensation scheme.
In 2006, some 30,000 of the victims of the dumping filed a
civil case against Trafigura in the United Kingdom (UK). On
23 September 2009, the High Court of England and Wales
approved a UK?30 million (US$45 million) settlement between
the parties. However, during the process of distributing
this money to the victims in Abidjan, an organization known
as the National Coordination of Toxic Waste Victims of Côte
d'Ivoire (CNVDT-CI), falsely claiming to represent the
claimants in the UK case, gained control of part of the
money and approximately 6,000 victims did not receive their
compensation.
Côte d'Ivoire was plunged into political turmoil following
the November 2010 elections, which led to a political
stalemate and to serious human rights violations committed
both by security forces loyal to the outgoing President
Laurent Gbagbo and those loyal to Alassane Ouattara. All the
country's state institutions virtually stopped functioning
during that time. The new president, Alassane Ouattara, was
sworn in on 21 May 2011. Since then, state institutions have
started functioning again.
An investigation into the misappropriation of the UK
compensation money was opened in 2011, and in May 2012, Côte
d'Ivoire's Minister of African Integration, Adama Bictogo,
was removed from his post by the President because of his
alleged role in the fraud. The investigation was ongoing at
the time of writing.
Despite some action by the states involved to investigate
and sanction those who were involved in the dumping of the
toxic waste, the victims have not seen justice done. The
central actor - Trafigura - has evaded all but a limited
Dutch prosection and the UK civil action. The truth about
what happened has never fully come to light. Adequate
compensation has not reached all of the victims. The
circumstances that allowed more than 100,000 people to
experience the horror of getting sick from an unknown toxic
waste dumped where they live and work continue to exist.
...
Chapter 14
The events in this report were truly transnational in
nature. The toxic waste was generated by a multinational
company, Trafigura, when it decided to carry out caustic
washing at sea in the Mediterranean region with full
knowledge that the waste that it would produce was
dangerous. The company then tried to offload and get the
toxic waste processed in the Netherlands. When it considered
that it was too expensive to process the waste in the
Netherlands, the company wrongfully exported the toxic waste
out of the Netherlands and European Union to Africa. It
contracted a company, Tommy, in Côte d'Ivoire, that lacked
the qualifications or expertise to process toxic waste.
The generation, transport and dumping of the toxic waste
spanned the world and the waste was transported by Trafigura
from the Mediterranean to the Netherlands, to Estonia, to
Nigeria and to Côte d'Ivoire. The effects of this illegal
transport of the waste by Trafigura and the dumping of the
toxic waste by Tommy, the agents of Trafigura, were borne by
the people of Abidjan whose rights to health, including a
healthy environment, and work were abused as a result.
The Basel Convention was created to prevent exactly this
kind of conduct and effects. The Convention is meant to
create a regime of international standards and cooperation
between states that can prevent the illegal transboundary
movement of hazardous waste. This report highlights how a
multinational company was able to circumvent this regime by
exploiting loopholes in enforcement and laws in different
countries. The report describes the failure of various
states to implement their obligations both to prevent the
illegal transboundary movement and dumping of toxic waste
and to protect the right to health of people who were
ultimately impacted by the dumping of the waste.
The states involved, notably the Netherlands and Côte
d'Ivoire, but also others, failed not just in preventing the
illegal transboundary movement and dumping of toxic waste,
in regulating a multinational company to ensure that it did
not abuse these international standards, but they also
failed collectively to provide an effective remedy to the
victims whose human rights were abused by Trafigura. The
abuses were transnational but the remedies were not and as
the previous chapters illustrate, the victims and groups
working on behalf of the victims have had to go from pillar
to post in Côte d'Ivoire, in the Netherlands, in the UK, in
France, and even before the European Commission seeking
justice and effective remedies. What they have faced are
multiple barriers to remedies, piecemeal processes which
only look at part of the story and which place the onus on
victims to prove the abuses and to even enforce the remedies
and claim the compensation that they were awarded.
...
Under international law, as stated earlier, where an
individual has suffered human rights violations at the hands
of several states, he or she is entitled to a full remedy
for all of the violations. So long as the right to an
effective remedy remains unfulfilled in relation to an act
for which a particular state is responsible, that state
remains under the obligation to provide meaningful access to
a procedure capable of providing an effective remedy.
The Maastricht Principles clarify that "where the harm
resulting from an alleged violation has occurred on the
territory of a State other than a State in which the harmful
conduct took place, any State concerned must provide
remedies to the victim". They also state that to give effect
to this obligation, states should: a) seek cooperation and
assistance from other concerned States where necessary to
ensure a remedy; b) ensure remedies are available for groups
as well as individuals; c) ensure the participation of
victims in the determination of appropriate remedies?".
It is not just the government of Côte d'Ivoire which has
failed in its obligation to provide an effective remedy to
people whose rights to health and work were abused by
Trafigura as a consequence of the illegal dumping of toxic
waste by its agent Tommy in Abidjan. The Netherlands, the UK
and the European Commission have failed to provide
meaningful access to the victims to a procedure that would
be capable of providing them with an effective remedy. ...
Failure to prosecute the company and to investigate the role
played by members of the Trafigura corporate group
Despite legal actions commencing in a number of
jurisdictions, there was a total lack of coordination and
international co-operation to prosecute those responsible
for the criminal acts in Côte d'Ivoire. To some degree,
these actions even appear to have played off against each
other in discouraging prosecutions into 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. ...
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 Euro25,000 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 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 longterm
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 hard-won 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.
AfricaFocus Bulletin is an independent electronic
publication providing reposted commentary and analysis on
African issues, with a particular focus on U.S. and
international policies. AfricaFocus Bulletin is edited by
William Minter.
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