On 19 August 2006, the Probo Koala, a cargo ship chartered by the British oil trading company Trafigura, docked at the port of Abdijan with 528 cubic meters of highly toxic waste, with the authorization of Cote d’Ivoire. The chemical waste was then dumped at several sites of the city and its suburbs. Air pollution ensued as a vile stench spread across the city. On the same day, thousands of people trooped to health centres complaining of nausea, headaches, vomiting, rashes and nosebleeds. At least 17 people died immediately and over 100,000 experienced health problems in the weeks, months and years which followed. Environmental experts reported severe groundwater contamination. State authorities carried out some remediation operations but not all polluted sites were decontaminated and people living in certain areas continue to experience health problems to this date.
Several cases were brought before the courts in Cote d’Ivoire with regards to this incident. In 2007, Trafigura signed an agreement with the Ivorian government to shield itself from legal action. In the agreement, the government undertook not to initiate or pursue any suit against the company or its representatives in exchange for 95 billion CFA. In the end, just a handful of families were compensated. And very few people involved in the incident were prosecuted and no state official was ever held accountable before a criminal court for their complicity or negligence.
In 2016, LIDHO (Ligue ivoirienne des droits de l’Homme), MIDH (Mouvement ivoirien des droits humains) and the FIDH (International Federation for Human Rights), three NGOs acting on behalf of the victims of this environmental catastrophe, brought a complaint to the African Court on Human and Peoples’ Rights. They asked the Court to find that the Ivorian government had failed in its obligation to protect human rights in relation to the Probo Koala toxic waste incident.
On 5 September 2023, the Court issued its judgment and found that Cote d’Ivoire had indeed violated the rights to life, to health and to a generally satisfactory environment[1] of all the people affected by the toxic waste dumping. The Judges explained that the protection of the right to life includes States’ duty to prevent and deter risks on the life of people by corporate companies. The Court found that Cote d’Ivoire knew that the cargo aboard the Probo Koala was toxic waste but it failed to ensure that the waste was treated safely, and that once the dumping had happened, it also failed to take all necessary measures to limit the damage caused to human life and to the environment. In addition, the Court found that the State failed to ensure that persons affected by the disaster had full access to quality health care and that it did not demonstrate that it had effectively and promptly cleaned the polluted sites.
Furthermore, the Court concluded that Cote d’Ivoire had violated people’s rights to information and to remedy.[2] It found that while the State did take some measures to inform people about the dangers around the contaminated sites, it however never informed the public of the long-term consequences of the toxic waste, the exact composition of the waste, the number of people who had died in the mid and long term, among other aspects. The Court also found that the signing of an agreement between the State and Trafigura created a regime of impunity. The Court emphasized that on a matter of such magnitude, national authorities had the obligation to investigate the matter and to consider the cases of all victims and award them reparations as necessary, regardless of how many victims brought complaints.
The Court thus ordered Cote d’Ivoire to ensure that victims receive medical and psychological assistance within 6 months, to amend its laws within one year to prohibit the import and dumping of hazardous wastes within its territory, and to ensure the responsibility of corporate entities in respect of acts relating to the environment and the handling of toxic waste, as well as to organize training programs for relevant public officials and in universities with a view to raise awareness on the protection of human rights and the environment.
The Court also ordered Cote d’Ivoire to conduct a general and updated national census of the victims and to publish a transparent public report on the use of the funds allocated by Trafigura within six months. The Judges also ordered Cote d’Ivoire to initiate a new independent and impartial investigation in order to prosecute the perpetrators responsible for the disaster and to establish a compensation fund for the victims within one year.
This case is the first time that the African Court has examined an issue related to the right to a healthy environment. It sets a very important precedent and clarifies that African States will be held accountable for failure to prevent and punish human rights violations committed by corporate companies.
[1] Articles 4, 16 and 24 of the African Charter on Human and Peoples’ Rights respectively
[2] Articles 9 and 7 respectively