Toxic Waste Dumping in Abidjan

Stefania-Bianca Dobre

February 2018

Modern history is dense with crimes resulting from joint state and corporation actions. For a long time, criminologists have viewed states and corporations as two separate entities. Over the course of modern history, frequently enough, the intersection between businesses and governments, two powerful entities, has led to a series of most serious and widespread crimes (Green and Ward, 2004). Over the past two decades, a group of criminologists – such as Steve Tombs, Penny Green, Tony Ward, Dave Whyte, Raymond J. Michalowski, Ronald C. Kramer – has come together to establish a methodology to examine the intersection between state crime and corporate crime (ibid). These harmful collaborations are termed as state-corporate crimes (ibid). State-corporate crime is thus a form of coincidence between political and economic powers pursuing common interests and leading to high-level criminality (Michalowski and Kramer, 2006). However, given the seriousness of these offences and the degree of damages caused by them, the response (regarding prosecutions, convictions, and sentencing) has been minimal (Green and Ward, 2004). Very few of the criminal and non-criminal actions by governments and corporations have been punished or even investigated. Instead, most actions committed by these powerful actors are usually categorised as “regulatory violations” (Michalowski and Kramer, 2006). Notorious examples of state-corporate complicity in human rights abuses, such as the Khulumani and Kiobel cases, remain unpunished.

This article will explore the case of a toxic event that occurred in Abidjan, Ivory Coast, in August 2006, known as the “Probo Koala” incident. It will argue the case should be considered a state-corporate crime involving Ivory Coast and two companies – Trafigura and Tommy. Next, it explains how this case falls under the definitions of the state-corporate crime of law violation, deviance and social injury which define state crime (Chambliss et al., 2010: 15-16). Furthermore, it identifies the role of the state of Ivory Coast in initiating corporate deviance by Trafigura and Tommy (Kramer, 1992 and Mathews and Kauzlarich, 2000). It also explains the definition of explicit actions of omission by the Ivorian authorities involved failing to uphold international human rights and environmental law. It concludes that the attention given to this case has not been proportionate to the extent of state-corporate crime, human rights abuse, the loss of human life, and the government’s failure to protect people and the environment.

As mentioned above, the “Probo Koala” incident is better understood as a state-facilitated state-corporate crime, in which the decisions of the actors involved made the toxic voyage of the Probo Koala, and the waste dumping a likely outcome. The term ‘state-corporate crime’ is used to refer to serious social harms that are identified as a product of the joint actions of a state agency and a business corporation (Kramer et al., 2002), whereas state-facilitated state-corporate crime is mainly defined by state responsibility (Matthews and Klauzarich, 2000:283). As Kramer and Michalowski (1990:6) put it, ‘State-facilitated state-corporate crime is defined as the failure of the governmental regulatory agencies to restrain “deviant” business activities’. It is this type of crime that is mostly in evidence in the case of the “Probo Koala” incident.

Let us start with the facts. In August 2006, a Greek-managed, but Panamanian-flagged tank named “Probo Koala” unloaded the equivalent of twelve 20 shipping containers of toxic waste (more than 500 tons) into Abidjan’s ports, produced by a Dutch commodities trading company Trafigura Beheer BV (“Trafigura”) (Ohchr.org, 2016). Trafigura is described as Dutch, Curaçaon, British or Swiss, international corporation and operates across borders with a physical presence in at least forty-four countries (MacManus,2012). Then, a local company contracted by Trafigura, “Compagnie Tommy” dumped the waste at 18 different sites around Abidjan, close to densely populated areas, killing fifteen people and causing over 100,000 to seek medical consultation (Amnesty International and Greenpeace, 2012, and Ohchr.org, 2016). First, the ship went to Amsterdam to dispose of the waste, since the country was in the best position to ensure that Trafigura’s waste was dealt with appropriately. However, the local company there refused to dispose of the waste unless Trafigura was willing to pay more than was initially arranged. Trafigura refused to pay the amount the Dutch company asked for, so it reloaded the slop onto the Probo Koala ship. The waste was repelled from the states of Estonia and Nigeria before arriving in Ivory Coast, where it was accepted.

The political and social context surrounding the “Probo Koala” incident involves events and decisions made by government officials that influenced the import of the waste and the subsequent dumping (White, 2008). The regulatory context consists of acts committed by individuals or other involved parties that did not follow the established rules and regulations. In the case of Abidjan, these acts typically involved careless disregard for the rules, or lack of enforcement of the rules because the Ivorian authorities were more preoccupied following their own, profit-making related goals (ibid).

This case is best viewed as a form of state-corporate crime, as opposed to just “corporate deviance or corporate crime”. The Ivorian authorities involved facilitated corporate crime by Trafigura and Tommy, and human rights abuse by allowing the company to discharge the waste at Abidjan (National Commission of Inquiry, 2007:85). The officials who were informed about the coming of the Trafigura vessel seemingly granted permission to offload the shipment at Abidjan (National Commission of Inquiry, 2007:85). According to the domestic law of Ivory Coast, the coming of the vessel should have been preceded by permission to berth (National Commission of Inquiry, 2007). Over 500 metric tons of toxic waste was dumped in the city under an agreement between Trafigura and a newly established company called “Compagnie Tommy”, which was unable to deal with the waste appropriately. The company was alleged to be established only for this special shipment (Eze, 2008:352). Tommy had neither the competence nor the technical or human means to treat the waste (National Commission of Inquiry, 2007:51). To collect and dump the waste, Tommy had to get a government-sanctioned Licence (National Commission of Inquiry, 2007:58). The Customs Services were supposed to attend a Licence Commission meeting to grant a licence to a company like Tommy. Despite the fact that a Licence Commission meeting was never held, Customs Services granted a probationary licence to Tommy. This licence allowed the company to act as maritime chandler specialised in maintenance and refuelling of a ship in the Port of Abidjan (National Commission of Inquiry, 2007:58). It held the company as an organisation competent to receive and manage the toxic waste. What is more, the request for the licence was granted without reference to the Licence Commission. This breach of law was justified by the General Director of Maritime and Port affairs as “we wished to avoid an appeal to the Prime Minister’s office” (National Commission of Inquiry, 2007:44). Consequently, the fact that the poor regulatory practices of the country granted the licence was a contributing factor to the dumping.

When the waste arrived in Abidjan, the Ivorian authorities allowed the Probo Koala ship entry into the Port of Abidjan (National Commission of Inquiry, 2007:28). This authorisation was requested from the Port Abidjan Captaincy by Trafigura’s shipping agent (WAIBS) and was received by the Transmissions Agent of the Port. Nevertheless, the toxic waste material was not investigated. What is more, Customs Services claimed to have not found out about the toxic waste until after the Probo Koala had departed (National Commission of Inquiry, 2007). Those facts indicate a failure of the customs to inspect the ship properly. Accordingly, the National Inquiry found, “Malfunctioning of the Customs Administration contributed to the dumping of toxic waste in the Abidjan District” (National Commission of Inquiry 2007:59). It should be noted that the MARPOL Convention at 11d enumerates a list of waste receiving facilities in each country and Ivory Coast was not one of them (MacManus, 2012). The waste was a mixture of tank washing, petrol and caustic soda (World Health Organisation, 2006). The disposal of the waste falls within MARPOL Regulation 3 (1) (A) of MARPOL Annex II – regulation, which requires the disposal of waste to a suitable reception facility of disposal and such facility was not available in Abidjan and Regulation 5 of MARPOL Annex II (Eze,2008). The import of the toxic in Abidjan contravened one of the requirements of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (from now on “Basel Convention”), the most widely ratified global instrument on illegal transport or disposal of hazardous and other wastes (Basel Convention, 1989). The Ivory Coast ratified the Basel Convention in 1994. The convention attributes responsibility to one or more of the states involved, and imposes the duty to ensure safe disposal, either by the state of export ensuring that the waste is taken back by the exporter or generator or by the state of import if the illegal traffic is deemed to result from the conduct of the importer of the disposer.

As a result, authorisation was granted, and the exchange was made. The significance of this case resides in the fact that it highlights the possible overlap between the violations of the provisions of the international human rights laws and conduct criminalised in international regulatory systems. Eze (2007:208-209) suggests that it was perfectly possible for international companies like Trafigura to get away with criminal behaviour in a country like Côte d’Ivoire, which would be prohibited in a European country. The illegitimate means, in a country like Ivory Coast, were rendered a welcome alternative because of a lax regulatory environment, corruption and free government concessions (ibid). This harmful “incident” was not simply the result of unintended consequences, but rather a crime in itself that stemmed from a complex of interactions between the state and social actors involved in the case. The absence of effective law enforcement, the diverse interests at stake and the conflicting purposes of the parties involved are integral elements that illustrate the central reasons for the tragedy that unfolded in Abidjan (Eze,2008). This event demonstrates how major corporate crimes can be both crimes of commission (corporate actions) and omission (state failure) (Kramer et al., 2002; Tombs, 2012).

According to Matthews and Klauzarich (2000), a lax regulatory environment contributes to state-corporate crimes. That is to say, lack of social control, organisational goals, and opportunity are all factors that contribute to facilitating state-corporate crimes. The role of the state of Ivory Coast in initiating corporate crime could be perceived as international human rights violation and law violation. White (2008), for example, argues that the systematic institutionalised failure to apply a nation’s laws justly, as in the case of Ivory Coast, is a violation of the human rights of its people. The Ivorian authorities contributed to the tragedy by failing to uphold international human rights (CESCR), local laws and regulations, and environmental law. By the International Covenant on Economic, Social and Cultural Rights (ICESCR) the District of Abidjan had a duty to protect its people from exposure to hazardous substances (Okechukwu, 2009). It was imperative that the state of Ivory Coast should have acted in such a way as to ensure the hazardous substances that were dangerous to human health, or which would contaminate food or water, were properly regulated and managed.

However, Ivory Coast is not the only country to have actively contributed to the tragedy. Trafigura was linked to Netherlands, Greece, the United Kingdom, Switzerland, and Panama-all Parties to the Basel Convention by ratification. There is substantial evidence to show that the Amsterdam Port Services also knew about the lethal cargo (Hulshof Commission, 2006). The Probo Koala ship first went to Amsterdam to dispose of the waste(Ohchr.org, 2016).There, the APS analysed the waste and found that the waste was hazardous and in need of special careful treatment and disposal. However, when the Amsterdam Port Services (APS) analysed the waste and found that the waste was different from the ordinary material the company used to deal with (Leigh and Hirsch, 2009). Because of that, the Dutch company raised the price. Refusing to pay extra, Trafigura pumped the load back onto the ship and set the ship back. The Netherlands, the fiscal headquarters of the exporting corporations also the State of export, had a duty to re-import wastes exported illegally (Eze, 2008). The APS, which was a company that was appointed as the port facility by the Dutch authorities to handle waste in line with the 1973/78 MARPOL convention, failed to prevent the reloading the waste (ibid). What is more, the Port State Control of the Inspectorate for Transport, Public Works and Water Management, allowed the captain of the Probo Koala to reload the waste, ignoring the fact that this could constitute a breach of the Environmental Management Act (Hulshof Report, 2006:31). The port services agents from the Administrations for the Maritime, Health, Immigration, Pollution and Environmental boarded the ship. These agents failed to exercise their control function. As a result, the ship was able to dock, and the toxic waste was unloaded (National Commission of Inquiry, 2007:29). This whole series of oversights and failures to reprimand wrongdoing created an environment that, when coupled with a strong corporate profit motive, was conducive to a tragedy such as the toxic waste dumping.

Another issue that warrants closer attention regarding waste issues is the inequality factor. White (2008) states the dumping of hazardous waste in third world countries is part of the normal “contracted out” disposal process common to global capitalism. The transfer of hazardous waste from Western society to the Third World is a feature of globalisation (Schmidt 2004; Harvey, 1996). The poor and minorities bear the brunt of waste disposal practices-more frequently people of colour and indigenous people (Brook, 2000; Bullard, 1994; Simon, 2000). This is known as “environmental racism” (Pellow, 2004; Julian, 2004). These people are forced to put up with harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon their health, whether legally or illegally-in this case illegally. The most disadvantaged people live in closest proximity to legitimate landfill sites and dumping sites (Pellow, 2004). As in the case of Abidjan, the waste was dumped in “Akouédo”, an open dumpsite for domestic waste located in a residential district of Abidjan. Later on, when the dumpsite was closed because of the smell emanating from the waste, some of the drivers of the trucks simply dumped the waste at random locations around the city, close to houses, workplaces, schools, fields of crops and the city prison (National Commission of Enquiry, 2007: 47-48).

Eze (2008) states that it was cheaper and more accessible for Trafigura to dump the toxic waste in Africa than have them properly disposed of in Europe since waste management is more expensive in the advanced capitalist societies (White, 2008). The disposal of such dangerous wastes in the countries of generation is proved to be a daunting task. That is because of the strict environmental regulations the exorbitant disposal costs. Low transport costs coupled with the rising costs of waste disposal in developed countries make corporations such as Trafigura to look around for better waste disposal deals. It also makes corrupt or incompetent governments officials like in the Ivorian authorities to collude with companies like Trafigura for cash-producing activities that can cost many lives and the good health of many people (Pellow, 2004). White (2008) states that within the capitalist mode of production on the global scale Ivory Coast was rendered a more welcome alternative to meeting the goals of capital accumulation. Ivory Coast is a developing country which at that moment was struggling to recover from a civil war, that lacked the adequate law enforcement and regulatory measures as the ones in the developed countries (ibid).

In the aftermath of the toxic waste dumping, the Ivorian authorities took some legal measurements to uncover the truth and pursue prosecutions. The Prime Minister of the country established a National Commission of Enquiry, and the State Prosecutor initiated prosecutions to bring those responsible to justice (National Commission of Enquiry, 2007).The Ministers of Environment and Transport were replaced by new individuals, the heads of the Customs Services, the Abidjan Harbour and the Governor of the District of Abidjan were all relieved of their duties (Eze, 2007:211). The charges brought against these individuals included offences such as poisoning and breaches of public health and environment laws, as well as violations of the national law domesticating the Basel Convention relating to the movement of hazardous waste. However, despite the charges that were brought against the individuals, the prosecutors failed to bring charges against the corporate entities. Although three executives of the Trafigura Group were charged, these charges were ultimately dropped. The company Trafigura insisted for years that the incident and its aftermath were not its faults. Nevertheless, in 2007 Trafigura agreed to pay a multi-million fine (approximately US $200 million) to the Ivorian government, in exchange for being exempted from prosecution (Leigh and Hirsch, 2009). Additionally, a Dutch court found Trafigura guilty of illegally exporting waste from the Netherlands (ibid). The settlement between the Ivorian government and Trafigura created obstacles to the victims’ pursuit of justice.

In this case, the company Trafigura, the Dutch company Amsterdam Port Services (APS), the company Tommy, the state of Ivory Coast and even the other governments involved played important roles in causing this tragedy – on the one hand through overt action, and on the other hand through regulatory neglect. At each level of analysis, potentially criminogenic factors can be identified, many of which overlap across conditions. Similarly, the catalysts for deviant state-corporate behaviour are remarkably notified across the case. In particular, the specific factors associated with lack of control, such as conflicts of interest and undue corporate influence within those government bodies charged with overseeing the corporate deviance, are evident in this case. The failure of the state to appropriately regulate the actions of its authorities is an outstanding feature of this case. The first acted to secure corporate profit without regard for the human and environmental costs, while the later failed as a government to protect people and the environment – all these in a context of lack of law enforcement. The significance of this event resided in the fact that it highlights both the larger issues how the toxic waste can have potentially far-reaching (global) consequences and the importance of how international systems are dealing with issues such as precaution, prevention, and law enforcement. There is a need for tighter controls over international shipments. The International law systems failed to keep up with companies that operate trans-nationally. Also, there is a need for a proper long-term health study and information disclosed to the victims and adequate compensation for all they have experienced. This is a continuing event, is not only crime committed back then but an ongoing travesty of justice today, in the sense that the people from Ivory Coast are still suffering.

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