During the American war against Vietnam, the Americans used many chemical weapons. In addition to chemicals like napalm which burned and maimed many people, the United States used chemical agents to defoliate much of the land of south Vietnam as a way to deprive armies of the north and their allies in the south food and shelter from forest cover.
IADL opposed the use of these chemicals at the time of the war because of their indiscriminate use against civilians as well as their potential toxic effects on people and the environment.
Agent Orange was by far the most widely used of all the defoliants, although there were many other agents, e.g. Agent White, Agent Purple, Agent Pink, and Agent Blue. These agents got their names, not from the color of the chemical but the painted band on the barrels in which they were shipped. Most of the agents contained various proportional mixtures of two organic compounds: 2,4,D and 2,4,5-T. Agent Orange was a 50-50 mixture of these compounds. Unless created under “laboratory conditions” the fabrication of one of the chemicals–2,4,5,-T– contains dioxin as an impurity. Dioxin is one of the most toxic substances known to man. It is known to cause birth defects in animals at very small doses, e.g. one part per trillion. The agents used in Vietnam were not made in laboratory conditions, they were fabricated at very high temperatures and processed quickly. The result of using high temperatures and fast fabrication was to increase the level of the dioxin impurity. Some contained over 40 parts per million.
Millions of liters of these agents were sprayed during the periods 1961 to 1971 by the United States and resulting in hundreds of pounds of dioxin being sprayed, with 12% of the land area and over 4 million Vietnamese people exposed to these agents. It is estimated that over 600,000 Vietnamese are currently suffering from agent orange related diseases and birth defects which are now showing up in the third generation. There are many “hot spots”where the dioxin levels in the soil and water and bodies of the populations in those areas are quite high. These hot spots are in and around abandoned US military bases.
In the late 1990’s the Vietnamese Lawyers Association, through their representatives on the IADL began reporting significant problems of disease and birth defects among the exposed populations which were attributed to the spraying of agent orange. By 2001 when the Congress of Lawyers of Asia Pacific (COLAP) III was held in Hanoi, a formal request was made to IADL to explore the possibility of bringing a legal action against the chemical companies which manufactured these chemicals.
In 2002 a working group of lawyers in the United States was developed through IADL affiliate, the National Lawyers Guild, to explore the possibility of bringing an action against the chemical companies under the Alien Tort Statute as well as for domestic torts of product liability.
The Alien Tort Statute would allow the Vietnamese victims to sue for damages for “violations of the laws of nations or treaties”. This statute was passed in 1789 and very rarely used. It was resurrected in 1980 when a case was brought to collect damages in a case involving torture, where the torturer was found in the United States. After that case, known as Filartiga v Irala Pena, many cases had been brought against individuals and corporations under the Alien Tort Statute for such things as extra judicial killing, rape as an instrument of war, forced labor, and the like.
On January 30, 2004 suit was filed in New York city against 37 chemical manufacturers who produced agent orange for the US government for use in Vietnam. The plaintiffs included the Vietnam Association for the Victims of Agent Orange/Dioxin (VAVA) and several individuals who were ill or had suffered illnesses due to exposure to agent orange. The primary claim was that the use of agent orange violated the Hague Regulations of 1907 which prohibited the use of poison or poisoned weapons in war.
The legal team which filed the action included IADL secretary general Jeanne Mirer, NLG members Constantine Kokkoris, Jonathan Moore, and William Goodman from New York and Kathleen Melez from Los Angeles. The team was later joined by Frank Davis, Johhny Norris, Stan Morris, and Jonathan Cartee from Birmingham Alabama. The members from Birmingham had been successful in bringing major toxic tort, products liability, cases against several of the defendant chemical companies in the past.
The case was assigned to Judge Jack Weinstein. Judge Weinstein was the judge who had heard cases filed by the United States veterans of the war in the early 1980’s who had sued for damages due to their own injuries as a result of their exposure to agent orange. A multi-district litigation order required all cases involving Agent Orange be assigned to Judge Weinstein.
The original US veteran’s cases were settled in the late 1980’s and payment was made to a large class of US veterans. In the mid 1990’s another group of US veterans sued again and their case was still pending at the time the case for the Vietnamese was filed in 2004. Thereafter the cases of the US veterans and the Vietnamese victims were virtually consolidated. That is, the motions to dismiss the cases filed by the defendants were heard on the same day. The decision of Judge Weinstein to dismiss both cases occurred at about the same time. The appeals of the cases were heard on the same day and the decisions affirming the dismissals were issued on the same day, February 22, 2008.
Both Judge Weinstein and the Court of Appeals rejected the arguments of the plaintiffs that agent orange which was laced with dioxin was a poisoned weaponed which violated the Hague Regulations. Both decisions held that these agents were mere herbicides which were aimed a plants not people, and no rule of international law in existence during the war prohibited the use of herbicides. By refusing to recognize that the presence of dioxin fundamentally shifted these chemicals from anti-plant agents to poisonous weapons, both Judge Weinstein and the court of appeals were able to justify ruling against the Vietnamese victims. . Also, after the case had been filed the US Supreme Court had decided a case called Sosa v Alvarez-Machain which more narrowly interpreted the Alien Tort Statute. Both court’s used the opinion in Sosa to support their rulings that the use of these weapons did not violate any treaty or universally recognized customary international law.
The case of the US veterans was also dismissed on the grounds that the chemical companies were protected from suit under the government contractor defense. This defense extends the shield of immunity which the state has under “sovereign immunity” to contractors who provide products to the government as long as they disclose to the government information about the dangers of the product. The US veterans claimed the chemical companies did not disclose what they knew about the dangers of dioxin to the government. The Vietnamese plaintiffs relied on the arguments made by the US veterans to support their domestic law claims so that the loss in front of Judge Weinstein and the court of appeals by the US veterans applied to the Vietnamese plaintiffs as well
All of the court documents up to the most recent decision of the U.S court of appeals for the second circuit are located on the website of the Fund for Reconciliation and Development, www.ffrd.org.
While this case has been pending the mass movement to educate the public of the legacy of the use of these chemical weapons has proceeded apace. In the US the IADL and NLG cooperate with the Vietnam Agent Orange Relief and Responsibility Campaign, (VAORRC) which is a coalition of many community and veterans groups, primarily Veterans for Peace (VFP). Their website is www.vn-agentorange.org. The IADL also cooperates with the War Legacies project of the Fund for Reconciliation and Development which is raising funds directly for the victims.
On June 18, 2007, the date of the oral argument in the court of appeals, the IADL sponsored a day of solidarity with the Vietnamese victims of Agent Orange. On that day around the world, IADL affiliates issued statements calling for support for the Vietnamese victims of Agent Orange.