11 Dec Getting Away with Mass Killings in Africa
Thomas MacManus discusses the issues of corporate crimes and killings in Africa. Focusing on the 2006 case of Trafigura – a multinational oil trading company – who offloaded hazardous waste in Côte d’Ivoire which was then dumped causing death, and suffering to thousands. MacManus argues that this case is illustrative of many instances of contemporary corporate crime, with African victims painfully let down by international legal systems.
By Thomas MacManus
Impunity for corporate harm is particularly striking when it comes to crimes committed by multinational corporations on the African continent. Domestic legal systems outside Africa purposefully turn a blind eye (by refusing jurisdiction or otherwise) to the extraterritorial behaviour of criminal organisations. This, combined with the legal protections afforded to corporations in the world’s financial centres, leads to a lack of public knowledge and understanding of the suffering meted out on Africans by Western companies. This ignorance ultimately leads to a lack of justice. And impunity leads to recidivism. The case of Trafigura’s toxic waste dumping is emblematic and helps to shed light on some of the reasons for a stark lack of accountability for the crimes of powerful corporations.
In August 2006, at least 16 people were reportedly killed, and thousands were injured by exposure to toxic waste that had been dumped in the city of Abidjan in the Ivory Coast (also known as ‘Côte d’Ivoire’). The dumping was orchestrated in the UK, just off Oxford Street, London, on the PCs of staff in the offices of Trafigura Ltd. Internal documents and emails between Trafigura employees and agents (including the CEO, traders, subsidiaries and the captain of the chartered ship ‘Probo Koala’), leaked by Wikileaks, gave an insight into a fatal crime that would undoubtedly otherwise have been hidden.
Purifying cheap low-grade oil by mixing with caustic soda to make a quick and impressive profit, but frustrated by a lack of low-cost solutions to the resultant toxic waste problem and a failed attempt at offloading in Amsterdam, the corporation engaged a ‘two-bit’ Ivorian company called Société Tommy (known as ‘Tommy’) to ‘get rid of’ the waste in Abidjan. In a handwritten note of their agreement, Tommy promised to do ‘a good job’ and to provide all the ‘necessary documents’ to Trafigura’s agents to shield the company from responsibility for ‘environmental accidents’. Despite the, quite frankly, obvious lack of local capacity to deal with the waste, bearing in mind the Port of Amsterdam was unable to do so, Trafigura agents offloaded the waste to Tommy’s trucks, which then proceeded to dump the dangerous cargo at a landfill dump and in open ditches around the city. A 2009 UN investigation confirmed that the dumping of toxic waste in Abidjan by Trafigura’s ‘Probo Koala’ caused the reported deaths and life-changing injuries .
The Cover-up and Impunity
You may not have heard some, or any, of the details of this crime before now. Since the dumping, the corporation has deployed a wide range of measures to deny, neutralise and cover up any evidence pointing towards its involvement in the poisoning – including an infamous super-injunction in 2009 . Trafigura’s legal firm Carter-Ruck, in pursuit of its policy to cover up, applied to court for an injunction on 12 October 2009 to prevent the Guardian newspaper from reporting on a parliamentary question by Paul Farrelly (Labour MP). The injunction further stipulated that the Guardian could not report on the question’s existence. This extreme form of censorship has led such legal interventions to be known as ‘super-injunctions’. Alan Rusbridger, then editor of the Guardian, argued that the development was a regression of free speech versus censorship.
At around noon on 13 October 2009, the day after the super-injunction was obtained, Trafigura (via Carter-Ruck) withdrew its claim that the Guardian reporting on the parliamentary debate revealing the injunction’s existence would be contempt of court. This climb-down was as a result of Farrelly’s question having been released into the public domain by bloggers and microbloggers, who are not subject to the same restrictions as mainstream media, and as Rusbridger recalls, ‘the Twitter-sphere had gone into meltdown.’.
Despite this early ‘Twitter-win’, Trafigura’s cover-up strategy has been largely successful, and to date the company has encountered no significant legal sanctions for its actions. In 2007, Laurent Gbagbo’s Ivorian government shook down the commodities’ trader, imprisoning two of the company executives and refusing to release them until the firm agreed to pay US$200 million. No charges were processed against the executives. No other jurisdiction has successfully prosecuted the crime.
How can we understand the processes through which a mass killing in Africa by a powerful European-based corporation attracts almost total impunity under criminal and civil legal justice systems? The fractious nature of jurisdiction-based systems is part of the problem and a 2006 European Parliament motion acknowledges the enforcement vacuum with a multi-trans-national crime of this nature:
the toxic waste was dumped by a Greek-owned, Panamanian-flagged tanker, leased by Trafigura Beheer B.V., a Netherlands-based company, and whereas such sharing of responsibilities creates a systematic, and unacceptable, problem with regard to the enforcement of EC legislation.
Domestic criminal law systems are not well adapted to deal with crimes that are organisational in nature. International criminal law too applies in practice only to individuals. The standard test of legal criminal liability in common law systems can be summed up by the phrase ‘actus non facit reum nisi mens sit rea’, which means ‘the act is not guilty unless the mind too is guilty’. From this well-established principle we get the two requisite legal elements of a crime: ‘mens rea’, the mental element of the crime, which must usually coincide with the ‘actus reus’, the offending act. The ‘actus reus’ is generally uncontroversial because it is much more easily located in the physical world. ‘Mens rea’, requiring a ‘mind’, is a more troublesome concept for the study of corporate crime as it can only usefully be ascribed to individuals. The legal concept of ‘mens rea’ is thus a major factor in attributing impunity for serious harm to organisations. The first US case of a corporation being tried for murder (more specifically, reckless homicide) was the 1979 Ford Pinto case (State of Indiana vs. Ford Motor Company). There was a complete failure of the US criminal justice system to appreciate the organisational nature of the crime. In the UK, a 1990 case against P&O for the Herald of Free Enterprise collapsed for similar reasons, the court struggled to identify a ‘corporate mind’.
The deficiency in our domestic and international criminal law may not simply be an oversight or mere technicality. The capitalist state, to survive in a competitive, globalised system cannot afford to discourage companies from taking risks. It would be counter-productive to enforce a strong regulatory regime that may deter the world’s big corporate players. Thus, criminal justice systems have an inherent tendency to avoid the prosecution of powerful organisations for corporate and state-corporate crimes.
In March 2014, Amnesty International (AI) called on the Director of Public Prosecutions (DPP) and the London Metropolitan Police to investigate Trafigura’s role in the dumping, alleging that the actions of Trafigura’s directors and employees may have amounted to a corporate conspiracy to dump waste abroad under the UK’s Criminal Law Act, 1977. The Crown Prosecution Service (CPS) responded that the case was ‘not for the Crown Prosecution Service’ and passed the buck to the Environment Agency (EA). The EA conceded that if the allegations against Trafigura were true, ‘a serious offence was committed with relevant aspect of the conduct taking place within the jurisdiction’ but refused to investigate as it has ‘limited experience of complex investigations’ and lacked the ‘appropriately skilled and experienced staff.’ The agency further admitted that due to cuts it was under ‘immediate financial pressures’ and said that Trafigura would probably ‘take any and every procedural opportunity to challenge steps taken in a further investigation, thus contributing to the anticipated extensive costs.’ As such, the EA concluded, ‘the cost-benefit balance is strongly against the conduct of an investigation’.
The EA’s fears are not irrational. The UK’s legal system appears to be particularly protective of criminal corporations. The use of libel laws and aggressive lawyers has been a success for Trafigura in suppressing information about the dumping. Caroline Lucas, the first Green Party member to be elected to the UK parliament, in her first speech to the House, took the opportunity to raise the case and noted the continuing media ‘blackout’ on the dumping:
A single MP can raise issues that cannot be raised elsewhere. Last year, hon. Members from both sides helped to shine a light on the actions of the international commodities trading group, Trafigura, and the shipping of hazardous waste to the Ivory Coast. There was particular concern that the media in this country were prevented from reporting the issues fully and fairly. That remains the case, for new legal actions concerning Trafigura have been launched in the Dutch courts and are being reported widely in other countries but not here.
African victims cannot rely on civil justice systems either to compensate for the deficiencies of the criminal justice system. For instance, in the UK about 30,000 victims of the 2005 dumping sued Trafigura in a civil case known as Motto & Ors v Trafigura, the largest personal injury claim ever filed with England and Wales Courts. However, in September 2009, Trafigura reached an out-of-court settlement agreement which included payment to victims and their families of about USD$1,000 each. This settlement precluded any legal sanction for wrongdoing being applied to Trafigura by ensuring that the facts of the dumping were not considered by a court of law and therefore not exposed to public scrutiny. Furthermore, it included a joint statement by both sides denying the liability of Trafigura for the dumping as well as including a confidentiality agreement which swears the claimants’ lawyers, Leigh Day , to secrecy. The agreement contained the following phrase: ‘the claimants now acknowledge that the fumes could, at worst, have caused only a range of short term relatively low level flu-like symptoms and anxiety’. In the end, very little of the compensation reached the victims as it was extorted soon after bank transfer to Ivory Coast.
The system is woefully broken. In the case of Trafigura and the Probo Koala, one that is illustrative of many instances of contemporary corporate crime, African victims have been painfully let down by the UK and international legal systems. States may find it difficult to stand up to corporations that are richer, more powerful and a vital source of investment but an international system without accountability promises more suffering and inevitably on a grander scale.
Thomas MacManus is Lecturer in State Crime at Queen Mary University of London School of Law and Acting Director of the International State Crime Indicative. He is author of State-Corporate Crime and the Commodification of Victimhood: The Toxic Legacy of Trafigura’s Ship of Death, (Routledge, 2019).
Featured Photograph: taken from a UN press release on ‘UN Environment releases independent audit of sites affected by toxic waste dump in Côte d’Ivoire’ (30 January, 2018).