THE TOXIC TRUTH ABOUT A COMPANY CALLED TRAFIGURA, A SHIP CALLED THE PROBO KOALA, AND THE DUMPING OF TOXIC WASTE IN CÔTE D’IVOIRE THE TOXIC TRUTH ABOUT A COMPANY CALLED TRAFIGURA, A SHIP CALLED THE PROBO KOALA, AND THE DUMPING OF TOXIC WASTE IN CÔTE D’IVOIRE 2 AMNESTY INTERNATIONAL AND GREENPEACE NETHERLANDS 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 consquences. 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. THE TOXIC TRUTH 3 A three-year investigation by Amnesty Such failures entrench impunity for corporate International and Greenpeace has uncovered crimes. Although Côte d’Ivoire responded the central reason for the tragedy that quickly to the crisis, the then government unfolded in Abidjan: in the absence of gave Trafigura sweeping legal immunity effective law enforcement, one company acted from prosecution in exchange for a financial to secure corporate profit without regard for settlement. The Netherlands – the country the human and environmental costs. That in the best position to act to ensure that company was Trafigura. Trafigura’s waste was dealt with properly – failed to act lawfully and contributed to the Trafigura made the toxic waste on board the violation of the right to health of the people Probo Koala. Trafigura knew the waste would of Abidjan. Trafigura Ltd., a company based in be dangerous and require careful treatment the UK that directed the operations on board and disposal, but it refused to pay for proper the Probo Koala at several critical points, has disposal when this option was offered in the never been investigated or prosecuted by the Netherlands. Trafigura knew – or should have UK authorities. known – that the waste should not be shipped out of Europe and that the company it handed Just as the Probo Koala sailed around the the waste over to was incapable of dealing seas of Europe and West Africa with its toxic with it properly. Trafigura knew the waste was cargo, Trafigura has sailed around the law, to be disposed of in a city dump. And Trafigura evading international law and exploiting gave false or misleading information about jurisdictional uncertainties. the waste to the state authorities and waste- processing companies in several countries. The nightmare inflicted on the people of Abidjan still haunts many people today. The Although Trafigura was convicted in a Dutch persistent failures – to hold the company court of illegally exporting the waste from the fully to account, to disclose information and Netherlands, the company was given immunity to ensure compensation reaches all those from prosecution in Côte d’Ivoire. Trafigura who are entitled to it – mean that the toxic claims the dumping and its aftermath were waste dumping at Abidjan is not only a crime not its fault. committed back in 2006 but an ongoing travesty of justice today. 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. 4 AMNESTY INTERNATIONAL AND GREENPEACE NETHERLANDS THE TOXIC TRUTH 5 CÔTE D’IVOIRE TOXic WASTE REPORT KEY FACTS OF THE CASE SECTION I AN UNNATURAL DISASTER 1. Introduction 2. How the waste was created 3. The waste arrives in Europe 4. The dumping in Abidjan 5. A health and environmental disaster 6. The waste and its impact: issues and questions SECTION II WHO IS RESPONSIBLE? 7. Corporate culpability: the case against Trafigura 8. Failure to prevent the dumping – responsibility of Côte d’Ivoire 9. Failure to prevent the export and dumping of toxic waste – responsibility of the Netherlands SECTION III THE fiGHT FOR JUSTicE 10. The right to an effective remedy and reparations 11. The limits of justice in Abidjan 12. Clean-up and decontamination 13. The limits of justice internationally: the Netherlands and the United Kingdom 14. Victims failed by all states SECTION IV CONCLUSIONS AND RECOMMENDATIONS SECTION V ANNEX The composition of the waste, where it was dumped, its impact and unanswered questions 6 AMNESTY INTERNATIONAL AND GREENPEACE NETHERLANDS THE TOXIC TRUTH 7 ILLEGAL TRAffickiNG IN HAZARDOUS WASTE [A]NY TRANSBOUNDARY MOVEMENT OF HAZARDOUS WASTES OR OTHER WASTES: (a) without notification pursuant to the provisions of this Convention to all States concerned; or (b) without the consent pursuant to the provisions of this Convention of a State concerned; or (c) with consent obtained from States concerned through falsification, misrepresentation or fraud; or (d) that does not conform in a material way with the documents; or (e) that results in deliberate disposal (e.g. dumping) of hazardous wastes or other wastes in contravention of this Convention and of general principles of international law, SHALL BE DEEMED TO BE ILLEGAL TRAFFIC. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal • ThE HUMAN RIGHT TO HEALTH States must ensure THE PREVENTION AND REDUCTION OF THE POPULAtion’s exposure TO HARMFUL SUBSTANCES SUCH AS ... HARMFUL CHEMICALS OR OTHER DETRIMENTAL ENVIRONMENTAL CONDITIONS THAT DIRECTLY OR INDIRECTLY IMPACT UPON HUMAN HEALTH. UN Committee on Economic, Social and Cultural Rights 8 AMNESTY INTERNATIONAL AND GREENPEACE NETHERLANDS KEY FActs OF THE CAse SUMMARY OF THE KEY FACTS OF THE CASE Akouédo dump site. This is the location where Trafigura contracted with a small Ivorian company to dispose of large amounts of toxic waste without treatment. © AMNESTY INTERNATIONAL 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 €27 per m3 to €1,000 per m3. THE TOXIC TRUTH 9 KEY FActs OF THE CAse Trafigura rejected this new quote and asked waste to make it safe. The waste was unloaded for the waste to be reloaded on to the Probo into trucks and taken to the dumpsite; however, Koala. After much discussion between the concerns about the smell led the site to close. Dutch authorities, this was agreed to, despite Truck drivers then dumped the rest of the the fact that the destination of the waste was waste at approximately 18 different locations unknown. around the city of Abidjan. On 19 August 2006, with the waste still on On 20 August 2006, the population of board, the Probo Koala arrived in Abidjan in Abidjan woke up to the appalling effects Côte d’Ivoire. Trafigura proceeded to contract of the dumping. Tens of thousands of a newly licensed company, called Compagnie people experienced a range of similar Tommy, to dispose of the waste at a local health problems, including headaches, skin dumpsite. There was no mention, in the hand- irritations and breathing problems. A major written contract with Tommy, of treating the 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.