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Amnesty international and greenpeace netherlands
Chapter 7
Trafigura contracted to dispose of the waste in the city dump The handwritten contract with Compagnie Tommy clearly states that this company will take the waste to Akouédo. In light of the hazardous nature of the waste and the fact that Trafigura, by their own account, had not worked with Tommy before, a check by Trafigura on the named location of Akouédo, to ensure it was a premises capable of dealing with such waste, would have been the least they could have done to exercise due diligence. After all, Akouédo was given only as the name of a site, and not as a treatment centre or company. There was no indication that it was appropriately licensed to accept the kind of waste on board the Probo Koala. This assumes that the staff involved in the process in two local companies – WAIBS and Puma – did not know what Akouédo was, even though it is a well-known landfill dump site in the city of Abidjan. Trafigura has stated that it “cannot have foreseen the reprehensible and illegal way in which Compagnie Tommy then proceeded to dump the slops”.391 However, much of the waste that Tommy dumped was at the Akouédo dumpsite, which is exactly what they had told Trafigura they would do.
Trafigura’s responsibility for the acts of Tommy Trafigura has argued that it has no responsibility for the actions of Tommy, and therefore is not responsible for the dumping, as this was carried out by another corporate actor. As will be discussed in Section III, no court has ever examined the legal liability of Trafigura for the dumping. A Dutch court has convicted the company for illegal export of the waste from Europe, but did not look at events in Côte d’Ivoire. However, the view that no legal liability or responsibility would attach to Trafigura for the actual dumping, simply because the actions were carried out by another company to whom Trafigura passed the waste, would be open to challenge under the environmental laws of many countries. Under the UK Environmental Protection Act, for example, the entity that created the waste would have a duty of care in respect of the waste. Under the duty of care provision, anyone who imports, produces, carries, keeps, treats or disposes of waste must take all reasonable measures to prevent the waste from being illegally disposed of. Waste must only be transferred to someone authorized to transport it.392 The Act makes it a criminal offence to deposit waste, or to cause or permit the deposit of such waste on land, except with a licence. It is also an offence to keep, treat or dispose of waste without a licence. Finally, it is also illegal to dump waste if the result is likely to cause pollution of the environment or harm to human health. Under this, and similar, legal frameworks it would be argued that Trafigura:
»»Did not take all reasonable precautions »»Knew the waste was dangerous »»Contracted with a company despite warning signals about its ability to manage disposal
»»Did not ensure that Akouédo had a licence. And therefore did not “take all reasonable measures to prevent the waste from being illegally disposed of”, but rather permitted the deposit of the waste on land at a site that did not have a licence. The fact of handing over the waste to Tommy in the circumstances described in this chapter would not absolve Trafigura of legal responsibility. It is arguable that in numerous jurisdictions, including Côte d’Ivoire, Trafigura could be prosecuted in relation to the dumping of the waste. The limitations of Côte d’Ivoire law are discussed in Chapter 8. However, the full scope of Côte d’Ivoire law was never brought to bear. A legal settlement between Côte d’Ivoire and Trafigura included a clause that gave Trafigura immunity from prosecution.
An office building at Akouédo, the dump site where Trafigura agreed to send the waste. © January 2010. N’jeri Eaton/Bagassi Koura