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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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