On the Brink of Genocide?

On Wednesday, Youssoufou Bamba, the Ivory Coast's newly minted Ambassador to the United Nations, warned that his country was "on the brink of genocide." Bamba, who was appointed by Alassane Outtara, the internationally recognized victor in the country's recent elections, voiced concern over massive human rights violations in recent weeks. (The BBC offers an excellent summary of the post-election crisis here.)
Should Bamba's statement be taken at face value? The signs are certainly concerning. Last week, the UN deputy human rights commissioner reported the deaths of nearly 200 Outtara supporters in the post-election violence, as well as many cases of arrest, detention, and torture. This is just the tip of the iceberg, as the UN has been prevented from investigating many serious allegations of human rights abuses. In one example, the UN Operation in Cote d'Ivoire was blocked from investigating a possible mass execution site north of Abidjan.
Senior UN officials have expressed concern over "incitement to hatred and violence" through the national radio and television and some private newspapers. Bamba noted that some houses have been marked according to their residents' ethnic background, a claim echoed by UN officials. Gbagbo has told the UN to leave and his youth minister, Charles Blé Goudé, has warned ECOWAS not to intervene. In his chilling words:

'They should prepare themselves very well because we are thinking about totally liberating our country, and soon I will launch the final assault.'

The forced migration dimension of the story leaves little doubt about the gravity of the situation. On Tuesday, UNHCR reported that 19,000 Ivorians had fled to Liberia. The refugees, largely women and children, are primarily supporters of Outtara but also include some pro-Gbagbo; all sides fear the consequences of a civil war. Most come from western Ivory Coast, a region already known for lawlessness and severe sexual violence prior to the election. While UNHCR has provisions for just over 10,000 additional refugees, humanitarian needs may soon eclipse their capacity.
In the new year, the European Union will tighten sanctions against Gbagbo and his supporters. As indicated in Diane's post yesterday, International Criminal Court Prosecutor Luis Moreno Ocampo has warned that "leaders who are planning violence will end up in the Hague," a call welcomed by Outtara, who has invited an ICC investigation. More to the point, ECOWAS has given Gbagbo a deadline of January 3 to step down or face forcible removal. One can only hope that these international efforts will be sufficient to pull the Ivory Coast back from the brink.

Toxic Pollution Verdict in Ivory Coast

Four years ago, Trafigura illegally dumped toxic wastesin various locations around the city of Abjidjan in Cote d' Ivoire. (See prior post.) More than 100,000 people were sickened and 15 died from exposure to the wastes.
Today, a Dutch court found Trafigura criminally liable for offenses associated with this incident. This guilty verdict is the first time anyone has been held criminally accountable for one of the most egregious environmental crimes in recent memory. The prosecutor had requested fines in excess of 2 million euros but the court ultimately imposed a fine of 1 million euros. Trafigura continues to deny that it did anything wrong in connection with the incident.
In July 2006, the tanker Probo Koala, which had been hired by Trafigura arrived in Amsterdam with a load of purported cleaning slops for treatment and disposal. Amsterdam Port Services, a waste processing company, agreed to process and dispose of the waste for about $15,000. But as workers unloaded the waste, they found problems: there was much more waste than the contract specified (around 400 tons) and it was far more toxic than expected and its fumes were making workers sick. Luut, Planting, a spokesman for Amsterdam Port Services described the waste as "pitch black and had a heavy stench. . . . .No one had ever seen similar waste.”
The company stopped unloading the sludge, ordered analyses and then informed the Amsterdam city authorities of the presence of hazardous waste. After confirming that the waste, composed of caustic soda and petroleum residues, was vastly more toxic than expected, Amsterdam Port Services raised its price for processing the waste to $300,000. Balking at the increased price, Trafigura decided to have the ship take back the waste. So, the hundreds of tons of waste were pumped back into the Probo Koala, a Greek-owned vessel flying a Panamanian flag, and leased by the London branch of a Swiss trading corporation. For reasons that have never been fully explained, the Dutch officials let the ship leave port with its toxic cargo. The ship stopped in Estonia and Lagos Nigeria, but could not find anyone to agree to take the waste. The Probo Koala eventually wound up in Abidjan, Cote d'Ivoire, one of Africa's largest seaports. Here, the waste was delivered to a local dumping company, Compagnie Tommy, which proceeded to illegally dumped the waste at 18 sites around the city rather than process it.Contemporaneous descriptions of the situation were stark:

“In 30 years of doing this kind of work I have never seen anything like this,” said Jean-Loup Quéru, an engineer with a French cleanup company brought in by the Ivorian government to remove the waste. “This kind of industrial waste, dumped in this urban setting, in the middle of the city, never.”

Amid an international firestorm of criticism, Trafigura was forced to pay $200 million to the Ivory Coast government to fund a clean-up of the contaminated sites. A lawsuit brought by Leigh Day on behalf of nearly 30,000 victims of the toxic waste dumping was settled in September 2009 when the High Court of England and Wales approved a $45 million settlement.
The Dutch case focused on the company's criminal activities associated with concealing the true nature of the hazardous waste in Amsterdam. The court found Trafigura guilty of violating European waste export laws aimed at preventing, "the export of waste to the third world and harming the environment." Trafigura was also found guilty of concealing the "harmful nature" of the waste on board the Probo Koala ship that arrived at the port of Amsterdam in July 2006, but was redirected to the Ivory Coast.
The court sentenced the captain of the Probo Koala ship, 46-year-old Sergiy Chertov, to a five-year suspended jail term, and fined 43-year-old Trafigura employee Naeem Ahmed, who coordinated the operation in the port of Amsterdam, 25,000 euros. The court did not consider the clearly criminal actions that occurred in Cote d'Ivoire, for which no one has ever been held accountable.

Guest Blogger: Claire Moore Dickerson

It's IntLawGrrls' great pleasure to welcome Claire Moore Dickerson (left) as today's guest blogger.
Claire is the Senator John B. Breaux Professor of Business Law at Tulane University Law School in New Orleans, Lousiana, and also a permanent visiting professor at the University of Buea in Cameroon. She has conducted considerable research in that country and elsewhere in Africa, especially the Ivory Coast and Senegal. Her scholarship -- including the co-authored Unified Business Laws for Africa (2009) -- is noted for its application of socioeconomic principles to business-related areas and for its focus on the intersection of commerce and human rights.
In her guest post below, Claire discusses her article, forthcoming next January in the American Journal of Comparative Law; it examines business law and informal-sector entrepreneurs in Sub-Saharan Africa.
Claire teaches Business Enterprises, International Business Transactions, Contracts, and a Comparative Corporate Governance Seminar. She came to Tulane from Rutgers University School of Law, Newark, New Jersey, where she was Professor of Law, Dickson Scholar, Schuchman Fellow, Co-Director of the Global Legal Studies program, and holder of the Visiting Lowenstein Chair. She also taught at the law school as St. John's University.
She holds an A.B. magna cum laude from Wellesley College, a J.D. from Columbia University, where she was a Stone Scholar, and an LL.M. in Taxation from New York University. Before entering law teaching she was a partner at the New York office of Coudert Brothers, and later at Philadelphia's Schnader Harrison Segal & Lewis.
She's active in several professional organizations, including the Law & Society Association and the American Society of International Law, and has served on the Executive Committee of the Section on Socio-Economics of the Association of American Law Schools.
In a further guest post below, Claire dedicates her contribution to 2 foremothers, Maître Alice Roullet-Piccard and Dr. Dorothea May Moore.

Heartfelt welcome!

Deference to Error?

How many serious errors must an agency make before the deferential standard of review accorded its decisions is revisited? That's the question that came to mind reading yesterday's excellent asylum decision by the Second Circuit. In Kone v. Holder, the court found that the Board of Immigration Appeals' decision (adopting and affirming the immigration judge's opinion) doubly erred, making mistakes both in its application of the law and its findings of fact. Ms. Kone, a national of Cote d'Ivoire, suffered female genital mutilation in her home country and feared that her two U.S. citizen daughters would be subject to the same treatment if she were to be sent back. She was also persecuted for her race, religion, and political opinion.
Even applying the highly deferential standards of review applicable in the immigration field (substantial deference to the agency's interpretation of its own regulation and substantial evidence for the agency's findings of fact), the Second Circuit found that the agency made serious mistakes in Ms. Kone's case. First, the immigration judge failed to shift the burden of proof to the government, as its own regulations require when an asylum applicant proves that they suffered persecution in the past. Notably, the court cites its own precedent for the point that where a woman has already undergone female genital mutilation, this does not lead automatically to the conclusion that no possibility of future persecution exists. Apart from the reality that a woman might be subject to further mutilation, there is no requirement in asylum law that threats must take the same form or be the same act as past persecution. The concept is simple -- if an asylum applicant's arm had been chopped off by government agents who opposed his political opinion, nobody would argue that he'd already lost his arm so wouldn't risk being persecuted again upon his return -- yet somehow judges find it difficult to grasp that a woman who has suffered female genital mutilation might face other forms of persecution, such as rape, based on her gender and ethnicity.
After describing the second error made by the immigration judge (a fundamental factual mistake), the court suggests that Kone might be eligible for asylum on two additional grounds. First, the mutilation she suffered might rise to the level of severe past persecution, which can on its own be grounds for asylum regardless of the risk of future persecution. Second, even if Kone's experience of FGM does not meet this higher standard, it might be sufficient to show past harm in the form of mutilation combined with the "mental anguish of a mother who was herself a victim of genital mutilation who faces the choice of seeing her daughter suffer the same fate, or avoiding that outcome by separation from her child." With stakes this high, and errors this grave, how is it that such great deference is still accorded to these administrative adjudicators?

A Koala That's Not So Cuddly . . .

Most readers likely remember the horrific stories of stinking waste dumped from a cargo ship in Abidjan in August 2006, a stunning example of what's been termed "toxic waste colonialism." The toxic sludge, which killed 17 and caused over 100,000 Ivorians to seek medical treatment, was dumped from the Probo Koala, a Panamanian-registered cargo ship operated by Trafigura, a British and Dutch multinational corporation. Trafigura had hired Compagnie Tommy, run by a Nigerian national, to dump almost 20,000 cubic feet of gasoline residues, sulphur, and caustic soda in Abidjan after it had failed to agree on deals to get the waste properly treated in the Netherlands or Nigeria. The contract was awarded to Tommy by Puma Energy, an Ivoirian company in which Trafigura and members of President Laurent Gbagbo's family held shares. On Wednesday, an Ivorian court sentenced the head of Tommy to 20 years in prison and sentenced a shipping agent at the Port of Abidjan who had recommended Tommy to Trafigura to 5 years. Noticeably absent were sentences for those responsible at Puma Energy -- the head of the company, who was supposed to be a witness, left the country several days before the trial -- and at Trafigura, whose executives were freed last year after it settled with the Ivorian government for over $200 million, but maintains that its "slops" did not cause the illnesses suffered by Abidjan's residents.

This failure of accountability underscores the need for expanded international jurisdiction over corporations such as Trafigura, whose prior misdeeds include violating the embargo provisions of the UN "Oil for Food" program in Iraq. To be sure, this is just the first battle in a longer war -- the Dutch Public Prosecutor has charged Trafigura in connection with its stay in Amsterdam before steaming to Abidjan and Leigh Day and Co., a British law firm working with Greenpeace, has instituted a class action lawsuit against Trafigura on behalf of those injured by the toxic waste. Moreover, the UN Special Rapporteur on the adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights (try saying that 10 times quickly!) has visited Cote d'Ivoire and called on the international community to assist in clean-up efforts. But the Special Rapporteur's website illustrates exactly the problem with international law's vision of the world -- it focuses on the obligations of States to monitor the disposal of hazardous wastes and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (to which all the nations involved are parties), rather than on the corporations responsible for the harm. Those corporations, of course, haven't signed any treaties, and are thus able to hide in the shadows of international law, cuddling their Probo Koalas while decimating the lives of hundreds of thousands of victims who can seek recompense only in weak national courts or the corporations' home courts.

Sexual Violence in Cote d'Ivoire

Human Rights Watch just released a report (written by Bernstein Fellow Etelle Higonnet) on sexual violence in Cote d'Ivoire since the beginning of the armed conflict in 2002. Analyzing interviews of 176 survivors of sexual violence and 100 representatives of groups ranging from government officials to rebels to NGOs, the report finds that both government and rebel forces perpetrated horrific sexual assaults. According to one survivor:

…At the market of Tiapleu…[the rebels] tried to force my brother to rape me and he refused and so they killed him. They took me and for a week they raped me all the time, they locked me in a home. We were about ten or fifteen girls there, being raped. When they weren’t raping me I just had to be there. They used to tie me up with my legs spread apart and arms tied behind me to rape me. They’d rape me three or four of them in the night, they would put their guns next to you and if you refuse they kill you. They killed one of my friends and made us bury her…

The report further notes that the Ivoirian authorities have failed to investigate or prosecute these crimes and the survivors face insufficient medical, psychological, and social support services.