Aug 12, 2010
Guest Post: MacManus on Trafigura
Below is a guest post from Thomas MacManus on the recent litigation on Trafigura and the dumping of waste. Thomas is an Attorney-at-Law of the New York Bar, a Fellow of the International State Crime Initiative and a doctoral candidate at the School of Law at King’s College London. He previously featured in a state crime mini-carnival here at HRinI.
The Probo Koala was chartered by Trafigura in 2004 and in June 2006 docked in Amsterdam to refuel and to discharge gasoline blend stocks that had been treated with caustic soda. Amsterdam Port Services (APS) discovered this waste had a significantly higher chemical oxygen demand than it was able to process as well as a high quantity of sulphur-containing organic compounds which caused a foul stench. APS gave Trafigura a revised cost estimate (up from €20 per m3 to €900 per m3), for treatment at Rotterdam. Trafigura rejected this quote and reloaded the waste. On 19th August 2006, the Probo Koala berthed in Abidjan, Côte d’Ivoire (Ivory Coast) where unloading was arranged with a newly created company – Tommy Ltd, which had made an offer of $35 per m3. Tommy Ltd rented 12 trucks and dumped the waste at 18 dumping points in 8 sites around Abidjan. None of the dumping sites had facilities for the treatment of chemical waste.
Residents in areas close to the dumping sites were directly exposed to the waste through skin contact and the breathing in of volatile substances. Secondary exposure occurred through contact with water and through the consumption of food grown on contaminated land. Thousands visited health-care centres complaining of nausea, headaches, vomiting, abdominal pains, skin reactions and a range of eye, ear, nose, throat, pulmonary and gastric problems. At least 15 people died, 69 were hospitalised and there were more than 108,000 medical consultations resulting from the incident.
The UN Special Rapporteur said that “there seems to be strong prima facie evidence that the reported deaths and adverse health consequences are related to the dumping of the waste from the Probo Koala.”
Last month, Amsterdam District Court fined Trafigura €1m for exporting waste to Côte d’Ivoire, a violation of a waste-management treaty designed to punish incidents of environmental harm. The Ukrainian captain of the Probo Koala, Sergiy Chertov, was sentenced to five months (suspended) for the same offence and for forgery (for concealing the nature of the waste in a written declaration). The firm was cleared of a forgery charge.
In 2007, Trafigura paid £140m to the Côte d’Ivoire government apparently in exchange for the release of three Trafigura executives and an agreement not to prosecute the firm. In 2009, the company agreed to pay 30,000 victims and their families a settlement of about £1,000 each – on the foot of a civil claim issued in London. Trafigura has never admitted to any wrongdoing.
The deaths of 15 people was not investigated nor considered by the Dutch court. The company cannot be prosecuted in Côte d’Ivoire based on its agreement with the government. It cannot be prosecuted for international crimes, as corporations do not attract international criminal liability. Human rights breaches are the responsibility of governments – not corporations. This case reveals an interesting aspect of widespread corporate impunity for crimes: the environment would appear to enjoy better international legal protection than humans.
