Victimization Devices: Exploring Challenges Facing Litigation-Based Transnational Environmental Justice

Introduction

On 8 March 2018, the District Court of Skellefteå, in northern Sweden, ruled in favour of Boliden Minerals – a Swedish mining corporation – at a complaint filed by a group of inhabitants of the city of Arica, Chile. During 6 years, a coalition of highly qualified NGOs, lawyers and activists tried to legally prove the company’s responsibility for multiple negative health effects that these inhabitants had been experiencing after living for many years close to highly toxic smelter waste that was originally produced in Boliden’s facilities in Skellefteå and then shipped to Arica in the mid-1980s. The dismissal of the claimants’ arguments was a bitter disappointment for all the people and organizations involved, whose decades-long work to some form of redress for the affected population will have to keep waiting. This outcome also represented a setback for the ongoing efforts to establish a transnational regime of legal accountability for the wrongdoings of transnational corporations when operating abroad, especially in countries that lack a proper environmental regulation, such as the case of Chile in the 1980s.

Along with more conventional media-focused campaigns, transnational litigation for toxic harm has become an increasingly popular way to enact a regime of global accountability for toxic harm. Usually, that alternative has been forced by the lack of other means for putting forward the affected communities’ claims onto a global stage, especially given that states ‘widespread reluctance routinely to pursue environmental liability through inter-state claims’ (Mason, 2005: 114), preferring instead to increase ‘the importance of private liability attached to operators of risk-bearing activities as the main mechanism for progressing environmental liability’ (Mason, 2005: 114).

Despite this growing popularity, rules for transnational harm litigation are still ‘the Yeti of international environmental law – pursued for years, sometimes spotted in rough outlines, but remarkably elusive in practice’ (Percival, 2010: 38). Due to the lack of clear rules, the processes usually ‘present complex questions of jurisdiction, choice of law, and recognition and enforcement of foreign judgments’ (Byers et al., 2017: 286). The complexity involved in those questions has meant that, as it happened in the lawsuit against Boliden, most transnational trials have concluded without achieving any kind of environmental justice for the affected, sometimes even worsening their situation, both financial and socially due to the high costs involved in enacting such schemes.

At the centre of such difficulties is the very complex task of establishing a victim status in an environmental crime for certain individuals and/or groups. According to Williams’ (1996: 35) well-known definition, an environmental victim is usually understood as ‘those of past, present, or future generations who are injured as a consequence of change to the chemical, physical, microbiological, or psychosocial environment, brought about by deliberate or reckless, individual or collective, human act or omission’. Following the conventional understanding, the definition establishes a direct causal relationship between some individuals, whose well-being has been affected by a change in their environmental conditions, and a certain entity that has clearly caused such damage. However, as most of the literature on the topic agrees, ‘environmental victimization do not sit well with traditional models of criminal justice’ (Hall, 2014: 130), mainly because ‘cases of environmental victimization regularly differ from the “default” situation studied in victimology: one perpetrator (or a small number), one victim (or a small number); one event (or a small number), all of which entail a clear breach of a criminal law, and result in readily ascertainable and immediate harm of a physical, psychological and/or financial nature’ (Pemberton, 2014: 66). On the contrary, environmental crimes usually are characterized by the almost opposite configuration, since

First, the harms suffered can involve an extended group or even a community of victims, sometimes representing rival interests. Second, the perpetrators are often corporations or states (White, 2011: 103–104) – and here we see the importance of developing a notion of ‘crime’ that encompasses those ‘lawful, but awful’ acts and omissions (Passas, 2005; see also Hall, 2013: 221; Hillyard et al., 2004; Lynch et al., 2013: 999). Finally, the causality nexus is extremely complex to reconstruct, sometimes leading to a consideration of environmental crimes as ‘crimes without victims’. (Natali, 2015: 64–65)

Such a configuration poses important challenges to our current justice systems, even in cases where the whole procedure is framed within national borders. First, ‘justice systems across the world are not accustomed or adapted to deal with “mass victimizations” of the kind that are often a feature of environmental offending’ (Hall, 2014: 13). Along with this, and secondly, ‘the complexity of the causal chain – including the lack of contact between victims and perpetrators and the statistical nature of much of the harm and wrongdoing involved – makes understanding the wrongfulness of many environmental crimes a cognitive exercise, rather than the visceral experience it is for “ordinary” forms of crime’ (Pemberton, 2014: 72).

All these problems are greatly amplified when you introduce a transnational component into the trials. As noted by Widener (2007: 21), usually, ‘when campaigns shift in scale from local to global contention (Stewart, 2004) and the targets become more complex, the issues become simpler and lose some of their detailed articulation’. As a consequence, the process of mobilizing victimhood claims to a transnational forum usually ‘result[s] in a breakdown in communication – a failure of translation – that fails in giving full voice to the…[affected’s] experience, leaving lawyers without information they can use or discrediting the witness as less than reliable’ (Bohme, 2014: 128), as concluded by one of the few case studies on the matter. The main consequence of such difficulties is the usual ultimate failure of transnational toxic harm trials to achieve any kind of justice for the affected, mainly due to the impossibility ‘to attribute direct (or even indirect) causation between the actions/inactions of a specific party (or state) accused of bringing about the harm and the undesirable outcomes themselves’ (Hall, 2014: 133). Such an outcome, calls us to start analytically dwelling into the components and processes involved in such transnational trials, in order to better understand its logics, potential and shortcomings for really achieving transnational environmental justice.

Currently, such a task has barely started. Actually, even regarding local lawsuits, ‘the processes of [environmental] victimization still remain little observed’ (Natali, 2015: 64), with the result that ‘the role or position of such victims in criminal justice and/or other processes has likewise rarely been the topic of academic debate’ (Hall, 2014: 129). With the purpose to start filling out this void, this article will look into the processes related to enacting victimhood in the Arica Victims v Boliden Minerals case. Adopting an analytic framework of science and technology studies (STS), this work will analyse that process as a matter of gathering victimization devices – or sociotechnical assemblages through which particular claims of toxic victimhood were mobilized from Arica to the court in Skellefteå. The next section will discuss our analytical framework inspired by STS in relation to the sociolegal literature. Thereafter we give an introduction to the case that we analyse with a focus on two especially prominent victimization devices: statistical victims (victims that belong to a particular statistic in a community of affected people) and testimonial victims (victims that bear particular testimonies of hardship). As the in-depth analysis of this case will reveal, the success or failure of transnational toxic harm cases will depend, in no little degree, on the capacity to effectively enact and mobilize those victimization devices. In a concluding section we summarize our findings and discuss the need to further understand processes of enacting victimizing devices, especially when cases of transnational toxic harm litigation are likely to increase in frequency and significance.

Victimization Devices on Transnational Toxic Harm Litigation

The existing sociolegal literature that analyses toxic victimhood and its problems, tends to agree on one key point: victimhood is an utterly social category. Based mostly on a social constructivist paradigm, studies tend to consider victimhood ‘an active social process involving relations of power, domination and resistance’ (White, 2011: 106), while also ‘involving dimensions of time and space, behaviours involving acts and omissions, and social features pertaining to powers and collectivizes’ (Hall, 2014: 132). In doing so, these studies ‘conceive of the subjects’ identity as victims exogenous and ontologically prior to court practices. That is, their subjectivity is determined by something other than court-prescribed criteria’ (Elander, 2018: 30). As a consequence, they end up with two different entities: the real victim, a human being affected by a certain environmental development, and the legal victim, or a new version of the victim created through a social process for the trial.

Current meetings between STS and sociolegal studies (Brown, 2006; Kendall and Nouwen, 2013; Lam, 2016; Picart, 2003) have proposed a more complex understanding of the victimization process. As noted by Brown (2006) in a seminal paper, the existing ‘polarization within criminology of nature and society, science and society, beings and things, has closed off the very real possibility that the most effective explanations and understandings of crime and control arise at the interstices’ (p. 255). This is why crimes, environmental or not, emerge from networks of highly heterogeneous entities: from affected human bodies to chemical spills; from loose regulations to malfunctioning infrastructures. Given those heterogeneous components, ‘analyses of criminal justice can no longer rest at analyses of social interests, and motivations, but must address the technological properties of the body politic, and of the institutional landscape of control, as inseparable from their form’ (p. 236). From this point of view, the notion of victim, like several other components of criminal law, ‘has lost its definition, become blurred, unsteady, unsure, extensive’ (p. 234).

Following this second line of reasoning, in this article, the victims enacted at the Arica Victims v Boliden Minerals case are going to be understood as multiple victimization devices, or as particular sociotechnical assemblages through which different versions of the victims come to life. Even in their discursive forms, these assemblages are devices because they are ‘considered as objects with agency: whether they might just help (in a minimalist, instrumental fashion) or force (in a maximalist, determinist version), devices do things. They articulate actions; they act or make others act’ (Muniesa et al., 2007: 2). Then, and breaking with the social constructivism permeating most of the literature on environmental crimes, victimization devices are utterly socio-material entities: legal and technical devices of different kinds and sizes, explicitly created with the aim of mobilizing claims about toxic harm from certain localities to the arenas where accountability and repair for that harm will be sought. Each single legal controversy enacts a great number of victimization devices, such as discourses from a specific population about experiencing a certain damage related to a particular compound or situation, to highly sophisticated models of the affected human body. Each one of these victimization devices ‘is an active thing that is constructed and handled, changing shape as it moves across different sites of practice where it is made to interact with different actors and actor-networks’ (Lam, 2016: 63). In doing so, victimization devices ‘are not merely a way to “represent” human individuals and groups existing somewhere else, but they are actively involved with (and affect in unexpected ways) the individuals or populations they claim to represent’ (Ureta, 2015: 7). Then, beyond their effectiveness at the trial itself, victimization devices have a performative effect over the very same individuals they claim to represent, and could end up affecting greatly their own self-understanding as victims of a certain toxic harm.

Therefore, the victim, of an environmental case, is never a singular and well-defined human being/group, neither a ‘socially constructed’ legal figure. Instead, the victim is always a composite formed by a variable mixture of different victimization devices, some of them working in a highly coordinated mode while others actively resisting each other. In judicial practice, they are taken as a singular entity not due to some inner coherence or common identity, but because ‘the criminal justice system [constantly] engages in practices that erase or make invisible these multiple realities. It does so by using perspectival modes of coordination (see Law, 2006), which effectively make ontologically distinct objects appear as though they were different perspectives on a single object’ (Lam, 2016: 62).

However, as we are going to see in the empirical section of this article, sometimes their lack of coherence becomes quite evident and fractious, leading to disruptions that could well derail the whole scheme.

Besides their always precarious coordination, victimization devices in transnational toxic harm litigation face two further key challenges. The first one is the issue of proving beyond doubt that certain harm has been caused. After all, ‘the notion of environmental victim implies that someone or something is being harmed through the conscious or neglectful actions of another’ (White, 2011: 105). A main issue affecting those claims regarding toxic harm is that ‘chemical, radiological or biological contamination often eludes human senses, so that the victim is unaware of the experience when it occurs’ (Pemberton, 2014: 69); accordingly, the harmful consequences become evident only ‘after a longer period, and even when this is so, the symptoms may not be restricted to one source’ (Pemberton, 2014: 69). As Nixon (2011) has explored, most toxic harms nowadays enact a ‘slow’ form of environmental violence, whose damage is quite difficult to turn into legal evidence. To make the matter even more complex, we all nowadays live in an environment saturated with potentially toxic substances (as briliantly explored by Langston, 2010), so it is extremely difficult to make a case pointing one single pollutant as the cause of a certain damage.

Facing this situation, actors involved in pollution litigation have usually opted for enacting statistical victimization devices, recognizing that to establish harm ‘may not be a matter of directly assessing a clear causal chain, but instead of establishing anomalies in the distribution of ailments across populations’ (Pemberton, 2014: 69). Then, one of the first tasks of the actors involved is usually to enact victimization devices in the shape of statistical bodies in which the presence of certain toxins is clearly accountable, usually through scientific evidence. In doing so, the toxins are ‘conceptualized as akin to microbes, as singular agents that were capable of inducing a specific disease once they entered the body. What mattered was not the broader environment but the specific chemical exposure’ (Nash, 2008: 654). Only statistical victimization devices whose (1) exposure to a particular chemical substance and (2) derived negative health effects caused by them could be firmly proved, could become proper toxic bodies for transnational litigation schemes.

However, as noted by White (2011), it is extremely rare that such statistical victimization devices would go unchallenged, no matter the degree of sophistication or depth of the available data.

It is rare that scientific evidence is uncontested and that proof of environmental harm is simply a matter of ‘let the facts decide’. What counts as ‘science’, what counts as ‘evidence’, who counts as being a ‘scientific expert’ and what counts as ‘sensible’ public policy are all influenced by factors such as economic situation, the scientific tradition within a particular national context, the scientific standards that are used in relation to specific issues, and the style and mode of government (p. 118–119).

A central position among them is occupied by victimization devices that seek to show other dimensions of harm beyond sick bodies. The starting point, here, is the recognition that ‘although the field of victimology has focused on economic or physical victimisation, the scope of harms – particularly those perpetrated by powerful institutions like corporations – can extend well beyond these realms’ (Spencer and Fitzgerald, 2013: 219). Chiefly among these harms are the ones of moral or psychological character, usually rendered through discourses about illnesses and related problems, often provided at first hand with the result that ‘through language, a victim subject is performatively brought into being’ (Elander, 2018: 7). As we are going to see, these victimization devices also rarely go uncontested in trials, in fact usually quite the opposite occurs.

If enacting victimhood claims through effective devices was not difficult enough, transnational litigation for toxic harm faces a second key challenge: the need to move the devices to distant locations, not only geographically, but also politically and culturally. Victimization devices would be useless if they could not be mobilized from their original locations to the forums where litigation will be carried out. After all, ‘the idea of responsibility traditionally refers to imputability, that is the possibility to trace back a situation or event to agents conceived as intentional, rational, autonomous and moral’ (Pellizzoni and Ylönen, 2008: 55). Mobilization is not easy or automatic, especially given that it involves transporting objects that are not used to be moved, or not even designed to be anything else than local victimization devices. In cases like this one, the transportation was especially challenging given that the victimization devices were originally from a faraway location, unknown to most of the actors involved in the trial, making it more likely to doubt their scientific and/or legal quality.

Given this, for victimization devices to be valid at the receiving end, they must move along with other components, creating a particular infrastructure of legibility that would help to interpret and, especially, reconstruct their validity at the point of arrival. The components of that infrastructure of legibility vary, ranging from data trails (usually in the form of a chain of custody) to expert interpreters, or even actors who would accompany the devices in order to provide a, relatively, faithful interpretation of them and their speech. However, no matter how much care is put into building that infrastructure of legibility, any mobilization process involves multiple and ongoing changes for the victimization devices, as recalled by Latour when analysing a similar transnational movement of samples.

Stage by stage, we lost locality, particularity, materiality, multiplicity, and continuity, such that, in the end, there was scarcely anything left but a few leaves of paper. Let us give the name reduction to the first triangle, whose tip is all that finally counts. But at each stage we have not only reduced, we have also gained or regained, since, with the same work of re-representation, we have been able to obtain much greater compatibility, standardization, text, calculation, circulation, and relative universality. (Latour, 1999: 70).

The fieldwork in which this article is based was carried out by the authors between January 2017 and March 2018 in Arica (Chile) and Skellefteå (Sweden) and consisted of participant observation of the trial’s proceedings between 17 October and 7 December 2017. The negotiations in the district court were scheduled for three to five full days a week during this period. With the help of two research assistants we managed to observe almost all days in the trial. For a few days that we could not attend we have relied on tape recordings of witness statements (available from the Court) and a tape recording of the final days of the trial (available from a documentary film-maker); in-depth interviews with involved actors, primarily victims, and key actors in Arica that have been involved in mobilizing data and people in order to make the trial happen, and interviews in Sweden with the involved lawyers in the case (these interviews were mainly short and informal, during the court proceedings, although one formal longer interview was made with one of the lawyers representing Arica Victims); and analysis of documents related to the trial (plans, evidence, decisions). All the names of interviewed victims in Arica have been changed to protect the anonymity of involved. The importance of having studied this case both in Arica and Skellefteå cannot be underestimated. This has enabled us to follow the travel of victimization devices from one local context to another. In addition, an important part of the analysis is to make a description – a reconstruction of what happened, with a particular focus on the victimization devices. In constructing this narrative, the collection of data in Chile as well as in Sweden, has been crucial. Our reading of media reports on the case as well as previous research has also been valuable for checking our own reconstruction against other accounts (obviously with another focus and from other perspectives).

The Arica Victims v Boliden Minerals Case

In the mid-1980s, the Swedish mining corporation Boliden Minerals shipped from its headquarters near the city of Skellefteå, northern Sweden, more than 19,000 tons of highly toxic smelter waste to Arica, the northernmost city of Chile. The original purpose was that a local company called Promel would process the waste in order to retrieve various minerals with commercial value and then deposit it on a high-standard waste depository. However, such processing never happened and the waste was abandoned in an industrial site located in the outskirts of the city, around which the Chilean state built several social housing complexes between 1990 and 1995, unbeknown of the waste’s presence. Given the absence of a closed perimeter around the area in question, known as Sitio F, it would soon become an open wasteland and the location where several activities were carried out by the local population, most notably an informal playground for children (for a detailed account of the case, see Castillo-Gallardo, 2016).

Since the late 1990s, an alarm was raised due to a wave of several illnesses in the population living in the area, such as headaches, spontaneous abortions, anaemia, bone pain, nose bleeding, among many others. Later medical studies (Tchernitchin et al., 2006) linked that situation to a sustained exposure to heavy metals, especially lead and arsenic, thus directing the attention to the waste abandoned at Sitio F. Therefore, in 1999, a number of neighbours decided to locally sue Promel and the Chilean state. Several years later, some of the neighbours received economic compensation for moral damages from the Chilean state. Since then, and with different success rates, the case has caused various local legal initiatives with the aim to obtain compensation for all victims and damages (which the compensation from the Chilean state were far from covering).

In 2012, an international coalition emerged with the purpose of presenting a lawsuit against Boliden in Sweden, for its alleged responsibility on the issue. That coalition started thanks to some interest shown by the members of the American legal NGO Environmental Defender Law Center (EDLC), who took on the issue upon hearing about it on 2011. After making several trips to Arica to meet with the affected neighbours, the Chilean and Swedish legal experts decided they had sufficient proof and support to pursue a transnational litigation process against Boliden. After organizing as claimants a group of more than 700 neighbours, namely Arica Victims KB, the legal team, in September 2013, filed a direct liability claim against Boliden Minerals in the County Court of Skellefteå, starting the first-ever lawsuit against a Swedish corporation, and one of the largest seen in an European court so far, for their responsibility for environmental damage in a foreign country.

Following the analysis made by Klocker Larsen (2014), the complaint from the Arica Victims against Boliden Minerals could be summarized as follows:

In the claim, the plaintiffs aim to show Boliden’s negligence in its involvement in the act that led to the damages suffered by the plaintiffs, i.e. that Boliden owed a duty of care directly to the victims despite the fact that the actual depositing of the sludge was undertaken by a Chilean contractor. The actions, it is argued, were contravening Swedish law and purposefully aimed at circumventing forthcoming changes in the Swedish regulation on the export of toxic waste. While Boliden was licensed to undertake the industrial activity in question, major decisions on handling of the mineral waste were expected to be made in a coordinating group involving government authorities, established under Swedish law. The export to Chile, it is argued, took place without the consent of this group. Furthermore, in this view, Boliden was prior to the waste dumping clearly cognizant of the health risks associated with the act. (p. 405)

As expected, the claim was based on the notion of an undeniable harm caused in the health of the neighbours by Boliden’s waste. Then, and following the usual procedure in the Swedish legal system, the trial would centre on the claimants’ attempts to ‘demonstrate a causal relationship between the tortuous act and the damage…[usually meaning that] the act must have been a “necessary condition” for the damage (condition sine qua non), and often must have been the decisive factor causing the damage’ (p. 431).

Following the conventional legal division between physical and moral damages, the actors involved enacted two main kinds of victimization devices for the trial. The first one was presenting quantitative data pursuing to show high concentrations of arsenic in the bloodstream of the plaintiffs and its negative health effects. Secondly, and in order to present the moral effects of those damages, the victimization devices were enacted by oral testimonies from certain plaintiffs. Their enactment and mobilization was beset with complexities, as we will explore in detail in the following sections.

Quantifying Harm

Given the complex nature of the toxic harm stated above, and that environmental litigations usually tend to involve a large number of individuals, statistics has become one of the main ways through which claims about toxic harm are enacted and mobilized in litigation schemes. For this reason, a key step to move forward this particular litigation was to enact victimization devices in the form of data showing the presence of high concentrations of a toxicant in the plaintiffs’ bodies, implying high prominence of several toxicant-related illnesses. Such high concentrations, then, would be linked to the waste deposited by Promel at Sitio F, as well as with a series of irresponsible decisions on the part of Boliden that lead to its careless shipment to Chile.

The first task was to identify the particular toxicant that could be the focus of a quantified victimization device. As noted, the waste present in Sitio F was characterized by high concentrations of several heavy metals. So, theoretically, multiple toxicants could be selected, a fact that could widen the number of plaintiffs and possible negative health effects. However, and derived from the recognition that ‘modern toxicology has struggled with calculating effects of multiple chemical exposures’ (Roberts and Langston, 2008: 631), the actors involved opted to choose one single toxicant, hopefully one that was easy to identify and whose negative health effects were well known. At first, the most obvious option was lead, given that very high concentrations of that metal were found among population from the very beginning of the controversy (Tchernitchin et al., 2006) and its negative health effects have been well documented.

Nonetheless, most of the previous local litigations about the case, especially the one against the Chilean state in 1999, had focused on lead, and because that trial was finished and compensations had been already paid, it was implied that lead was not an option. In the absence of lead, the obvious next candidate was arsenic, specifically arsenic trioxide (As₃O₃), a well-known toxicant since the 19th century (Whorton, 2010), even being nicknamed ‘the poison of poisons’. Arsenic trioxide is also one of the most common by-products from smelting mineral ores, such as the one produced by Boliden.

The challenge was, then, to enact a data set showing high arsenic concentrations on bodies of the people living in the vicinity of Sitio F. As usual, the validity of such data would be based on science, specifically on the credibility of the particular scientific institution producing it. This institutionally validated character of the victimization device was especially key, because it should not only be valid in Arica, but all along the litigation network, especially at the County Court of Skellefteå, thousands of miles away and in a completely different technical, legal and cultural setting.

To the good fortune of the claimants, such institutionally validated data were already available. The neighbours’ decade-long struggle for justice had produced no little amount of scientific information, among them several kinds of pollution-centred data sets. Among them, there was one set that appeared as especially promising. As part of an intervention plan designed by the Chilean government for the affected area, all of its inhabitants have been yearly examined since 2010 in order to check the concentration of a number of toxicants on their bloodstreams, arsenic being one of them. Those tests have been carried out by the Instituto de Salud Pública (ISP; in English: Institute of Public Health), the most important institution of public health in Chile, so they were ideally suited to become the main vehicle to enact a mobile and effective statistical victimization device regarding polluted bodies that was needed for the trial in Sweden.

In order to enact this device, the legal team started by establishing two key criteria that people interested in being a plaintiff must meet. The first one was to currently live or to have been living in the vicinity of Sitio F, in an area known as Polígono (in English, ‘Polygon’). As it can be seen in Figure 1, Polígono is constituted by an area directly surrounding Sitio F and established as the most heavily and pollutant-affected place by the Chilean government in 2009. Polígono is mostly composed by six housing states (the areas in red), gathering a population of approximately 13,000 people.

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Figure 1.

The polígono area. Source: Designed by M Hinojosa.

Besides the residential criterion, the interested people must have ISP test results that show that the level of arsenic in their urine was equal or higher than 30 mg/l. That scale was established following the Swedish standards for biological tolerance to arsenic, which state that there is arsenic pollution when it is found in and above those concentrations.

During 2013, the lawyers selected the group of neighbours to be included in the plaintiffs group based on those two criteria. The selection process was not easy, as it could be expected. Multiple inhabitants of the Polígono area were excluded in the list of plaintiffs because they did not have the ISP tests in hand, or because their test results indicated less than 30 mg/l of inorganic arsenic in their bodies, although they suffered a series of diseases and/or ailments easily attributable to arsenic contamination. Many of the excluded had also been involved in the fight for justice from the very beginning, so their exclusion was very painful. As Pedro Marques, one of the people in charge of recruiting plaintiffs in Arica, recalled in our interview:

…You had to tell to people ‘You are out’. Of course, I tell you this, but to say that to someone in a meeting…[People said]: ‘No, it cannot be!’ There were people who even wanted to attack you: ‘It cannot be!’ Then, they said: ‘Look, I cannot walk!’ and so, right there: ‘I cannot walk!’ ‘My mom had cancer!’, what do I know, ‘And now you are leaving me out!’ (…) But I had to do it anyways, and that hurts.

In the neighbours’ anger, we could see that the importance of being included in the data set was not only related to the possibility of receiving a financial compensation. Beyond this, to be part of this victimization device was also similar to what Petryna (2002, 2004) calls ‘biological citizenship’, in the sense of granting ‘access to a form of social welfare based on medical, scientific, and legal criteria that both acknowledge biological injury and compensate for it’ (Petryna, 2002: 6). To enact such a form of citizenship, as we will see later in this article, usually involves ‘a tangle of social institutions and the deep vulnerabilities of persons’ (Petryna, 2002: 33). Especially in locations where there are few operative public welfare institutions, as the ones receiving toxic waste from Boliden, to be able to provide that data was not a trivial matter. On the contrary, in the years that have passed since the start of the controversy, the inhabitants of the Polígono area have increasingly become dependent of that accounted toxicity ‘to gain political recognition and admission to some form of welfare inclusion’ (Petryna, 2004: 262). As a result, ‘the tighter the connection that could be drawn, the greater the chance of securing economic and social entitlement’ (Petryna, 2004: 262). Having a toxic body is an asset, even a form of capital, that can be traded (through a liability process) for different forms of compensation.

Therefore, the performative capacities of victimization devices are evident, which, while bringing to light the suffering of some neighbours, it also makes the situation of many others invisible, denying them their ‘biological citizenship’ as victims, adding, to the pain caused by their illnesses, an anger generated by the non-recognition as part of those people affected. Such distinction was strongly criticized not only by those who were excluded from the claim, but also by the plaintiffs themselves. As Juan Saldia, one of the latter, told us:

[…] I believe that if one lives here (Polígono), where we are all affected, and they say: ‘This one yes, this one no, this one yes, this one no, this one no’. […] I think that [the participation in the claim] should include all of us, we are all involved in this and we are all supposed to be [affected]. Why did they [accept me], and those who live with me in the same house did not? […] Why did they allowed me to be part of this possibility and my partner did not? […] Let’s say [that the claim] is a success, and that after that, it turns out that my wife develops a [bad health] condition, who will answer for that? So that’s why I say, you end up with a bad taste, that bad taste that there was not justice in this situation.

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Figure 2.

Data set of quantified victims (extract). Source: Skellefteå County Court.

Through this victimization device, the locally known ‘Polimetales controversy’, a situation where thousands of neighbours were affected by the exposure to a variety of toxic elements (hence the name), turned into a different issue: a problem affecting 796 scientifically certified individuals presenting high concentrations of one toxicant, arsenic. Although such operation greatly simplified the controversy, it was seen as worth it, given that this particular victimization device was deemed as being able to travel all the way from the streets of Polígono to the County Court of Skellefteå.

Mobilizing Testimonios

On 12 September 2013, a complaint was filed at the Skellefteå Court, accusing Boliden of sending toxic waste to Chile, knowing in advance that Promel did not meet the necessary conditions to process them, requesting the payment of US$16,590 to each one of the affected people as monetary compensation for moral damages. As expected, Boliden rejected each one of the allegations made against them, stating that if there was a relationship between the waste sent to Chile and the damages suffered by the plaintiffs (which they also questioned), the responsible ones were Promel, because they abandoned the material without taking the necessary precautions, as well as the Chilean government authorities for authorizing the construction of social housing in an area that was not suitable for residential use.

The hearings for the trial started in October 2017. Following the custom of the Swedish law, they included the ‘use of the adversary rather than the inquisitorial principle in court hearings…[resulting in a] very concentrated trial with all evidence taken during the main hearing’ (Klocker Larsen, 2014: 430). Such concentration and the further principle that ‘it is the responsibility of each party to provide the evidence used as grounds for the claim’ (Klocker Larsen, 2014: 430) implied that the claimants must be very effective in providing strong proofs that could sustain their claims. The proofs were not only focused on establishing Boliden’s dubious acting in outsourcing their waste to Promel, but also (and mainly) on the emergence of victims at the receiving end: human beings showing high concentrations of arsenic and, as a consequence, experiencing all kinds of health issues and related problems.

In order to account for that, especially given the adversarial mode of the trial, it was not enough to only show the scientific evidence of the toxicants on the plaintiffs’ bodies and their negative health effects. In parallel, it was also necessary to provide another kind of victimization device, one that could serve as way to ground such damage in some particular lives, especially related to its emotional component. That role was assigned to the testimonios (in English, testimonies) of a cherry-picked number of witnesses, some of them plaintiffs as well. As noted by Tate (2013), when analysing a similar case, testimonios consists of ‘the emotional recounting of experiences of suffering that activists have historically used as a central mobilizing practice, particularly in Latin America’ (p. 58). What is central is that the recounting is usually considered not only as an anecdote, but it also becomes a kind of parallel expert statement, one that is not associated with the usual technical proficiency, but with ‘its ontological status as a report of conditions “on the ground” in hidden, inaccessible, and dangerous sites, authentically representing individual life events’ (Carr, 2010: 58).

The particular validity of testimonios was vividly recounted by Pedro Marques, one of the key local actors behind the case, after returning from giving his statement in person at court:

After the audience we went out for dinner. We felt that we did good, that it has been good, that this has been overwhelming, because the inhabitants were able to tell [about the case] from their personal experience. The specialists talk about, I don’t know, the chemical issues, but not about the people’s lives…I would say that the strength of the testimonios given there is introducing the life of these people, and what it means for a person being said one particular day: ‘You know what? Everything here is contaminated’. For you, it is that [they were telling you] that life was normal, but afterwards it stopped being normal, that everything changed. Before, there were diseases, but when they tell to you: ‘No, [this place] is contaminated’, oh shit! And then you start living not knowing of what your life will become. And this is what we have worked on…on making [what happened to the people] believable, because it was centred on that you were going to speak from your experience…

The potential availability of ‘overwhelming’ testimonios was not a problem – almost every single neighbour of Polígono had a strong story to tell about the subject. The problem was to take them from Arica to Skellefteå. Due to the high costs involved, the travel of witnesses was strictly limited. ¹ Also, as it could be expected, none of the plaintiffs had any knowledge of Swedish, the language in which the trial would be held, so a translation for the testimonios also needed to be available.

A great deal of effort was put to assemble a valid communication/translation infrastructure through which testimonios could travel and be understood in Skellefteå. This task was entrusted to the Second Court of First Instance of Arica, where infrastructure was provided so the witnesses could give their testimonios through videoconference to the court in Sweden. In the weeks preceding the hearings, both institutions worked intensely to set up such infrastructure, a quite challenging task given their lack of experience in the matter. For example, in Figure 3 below, we can read a statement from the Second Court in Arica dated 3 August 2017, that expressed the lack of a proper communication platform to carry out the hearings, given that the communication software that they regularly used, Skype, was not accepted as a means to provide remote testimonies by the court in Skellefteå.

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Figure 3.

Statement from the Second Court of Arica (with translation), dated 3 August 2017. Source: http://www.pjud.cl/home, translation by the authors.

The issue of establishing the communication link between both courts was so challenging that they had to postpone the hearings once, until all of these issues were settled and an agreement was reached from both parties. Finally, they were successful to do so and the remote hearings proceeded from 26 October until 17 November 2017, while the trial itself lasted until 7 December 2017.

However, the infrastructure was never considered merely as a medium to move testimonios transnationally, but that it directly affected their contents and, mainly, their emotional intensity. For example, let us consider the following extract from the testimonio given by Florencia Meza, an inhabitant of Polígono living for decades only a few meters from Sitio F.

Lawyer:

…Well, could I ask you to introduce yourself to the court with a brief description of your history, where have you been living in the Sitio F area…

Such intervention of the infrastructure on the testimonios was even more evident in the case of Gloria Lara, another long-term inhabitant of Polígono who was involved in the lawsuit from the very beginning.

Lawyer:

Does the wind blow always in the same direction [inside Polígono] or does it blow in different directions?

In the end, the courts managed to generate the required infrastructure so the witnesses could make their statements from Arica to be received and understood in Skellefteå. Such infrastructure, however, was not merely an inert or transparent mechanism. As the role of the interpreter in the quotes above shows, the infrastructure directly intervened with the testimonios, making the travel of words and certain statements much more difficult than others, especially the ones associated with emotional retellings of their experiences regarding toxic harm. In some cases, the barriers, as vividly seen in Lara’s case, made it difficult for the statements to be testimonios altogether, that is, an ‘emotional recounting’ of a lived experience. Instead, they acted only as providing some missing technical information. In that sense, the assembled infrastructure could be seen not just as a network of communication/translation – and playing with the double sense of the last word – developed by Law (2006), but as one of communication/betrayal, or an infrastructure that will only allow information to travel from one place to another with some alterations, even with the result of losing some key attributes.

Conclusions

At the verdict, on 8 March 2018, the District Court of Skellefteå seemed to agree with most of Boliden’s arguments, dismissing finally the plaintiffs’ claim. ² The victimization devices seen in this article played a central role in the outcome, especially in the case of quantified harm, as explained in the verdict:

The Court regards that Arica Victims did not show that damages could be caused by an urinary arsenic content lower than 100 mg/l, so the lawsuit submitted by Arica Victims must be rejected. Relatively few individuals had such arsenic content at the time of sampling (…) Besides, it was not demonstrated enough that wet sludge contributed to the environmental arsenic in the Sica Sica and Alborada areas in a way that it has been a clearly more likely source of the measured levels or urinary arsenic among people who meet the criteria of harm. On the other hand, [while] there is evidence about the existence of such connection in the areas located towards north and northeast of Sitio F, this causal connection has not been adequate in relation to the injuries of people who live in this other areas. (p. 136)

That outcome, obviously, does not mean that there were no victims among the neighbours of Polígono. Dozens of scientific reports, testimonios and major legal precedents have largely backed up their existence. The problem, then, was a matter of mobility, or the difficulties faced when trying to enact Arica Victims at Skellefteå’s courtroom, mainly through the usage of the described victimization devices. From the perspective developed in this article, we could conclude that the victimization devices were able to travel correctly from Arica to Skellefteå; they were received and accepted as evidence. But in the process, they were unable to keep together the set of relations that gave them strength at the point of origin. In the end, probably the most relevant effects of these victimization devices were the pain and anger experienced by the Sitio F neighbours upon hearing the court’s verdict, not only because of the missing compensation, but also because the denial such outcome implied in terms of their most basic biological citizenship rights.

This result raises a number of key points regarding the enactment and mobilization of victimization devices when practising transnational litigation schemes regarding toxic harm. First, when enacting victimization devices the complex existence of toxic harm must be maintained, avoiding the kind of easy simplifications that tend to populate these trials. Albeit it seemed entirely reasonable to choose just one well-known toxicant such as arsenic as the object of the procedure, that selection simplified greatly the pollution situation in Arica and made the toxic pollution claim an easy target for Boliden’s defence. Second, it is important to invest more in the coordination of the different victimization devices in order to avoid the emergence of gaps between them, which found its greatest expression when the discussion at the Court focused essentially on the quantitative evidence, as if testimonios lacked any value. Thirdly, and probably the most important, it is key to understand victimization devices as such: as technical artefacts that do not work in isolation – at least, not in the way we expected them – but only in relation to an infrastructure of legibility that allows them to keep enacting in similar ways in different locations. Without such infrastructure of legibility, as it happened in this case, victimization devices fall prey of any kind of local or idiosyncratic translations, usually acquiring new meanings that could well go against their original stated aims, as it occurred in the verdict from the Court in Skellefteå.