Presentation by Jeanne Mirer, President of the International Association of Democratic Lawyers
Veterans for Peace National Convention in Minneapolis/Saint Paul (MN)
I speak to you as a lawyer, a people’s lawyer. A lawyer who knows the relationship between battles in the court room and battles in the streets and battles in the court of public opinion.
Sometimes legal cases spark a movement, and sometimes movements find their way to courtrooms for redress.
In the 1950’s the NAACP determined that it was necessary to pursue a strategy in the courts to attack the citadel of “separate but equal” in order to make a dent in the stronghold of segregation. Knocking down the legal structures of division in the historic case of Brown v Board of Education sparked a broad civil rights movement which had at its core the fight for human dignity.
After the Vietnam war the US veterans who served there began getting sick and dying of diseases which could only be traced to the poisons used by the US in Vietnam to poison food and the environment and the people who lived in the 12% of the land area of Vietnam. Veterans knowing that these chemicals caused their illness, found lawyers to champion their cause. The initial case filed by US veterans in the 1980’s against the chemical companies developed a record which showed that the Chemical companies knew many things about how poisonous and dangerous their products were and how little they told the government about these dangers. The record created by the lawyers showed companies like Dow and Montsanto suppressed the findings of the Bionetics Laboratory which found dioxin laced herbicides had killed or deformed virtually all of the animals exposed even to very low doses of dioxin.
The US Veteran’s case was settled before trial, for almost 200 million dollars, but this was not nearly enough and a campaign ensued to push congress to support benefits for US Vietnam Veterans who have a certain set of diseases. While there have been more law suits by US veterans, and there are many problems with benefits program, the Vietnamese, the intended victims of the spraying are suffering from the horrific effects of these poisons.
From the ground breaking work by Jeanne and Steve Stellman, who determined that between 3.2 and 4.8 million Vietnamese were exposed to dioxin, we know that today hundreds of thousands of Vietnamese are suffering from the effects of these dioxin laden herbicides.
Birth defects related to exposure to dioxin are showing up in third generations of children of those exposed.
I am involved in the law suit representing those victims. I am the Secretary General of the International Association of Democratic Lawyers, IADL an international organization of progressive lawyers and bar groups around the world. In the US the National Lawyers Guild (NLG) and National Conference of Black Lawyers (NCBL) are affiliated to us. We work in the US with the Vietnam Agent Orange Relief and Responsibility Campaign (VAORRC).
Our work on this campaign is a continuation of IADL’s consistent support for the Vietnamese people’s right to liberation and self determination. 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. 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.
1. The first question, therefore, is “did the United States violate the law in deciding to use these agents in Vietnam?”
The answer to this question is most certainly, yes.
In deciding to use defoliants in Vietnam the United States Government failed to consider its obligations under the Hague Convention of 1907 on the Laws and Customs of War, which categorically prohibits the use of poison or poisoned weapons in war. The United States Government also failed to abide by customary international law which also bans poison or poisoned weapons in war.
What do I mean by this statement?
The record evidence which was produced in the cases filed by the United States veterans and the Vietnamese victims shows both that (1) the government was given legal advice that it could not use herbicides or defoliating agents which were harmful to man, animals or soil, or if they poisoned people directly or indirectly through ingestion, (2) that the government ignored this legal advice in using untested chemicals which they knew or should have known had some toxic effects, and (3) they suppressed the report which showed the toxic effects of these chemicals for several years before banning their use both internationally and domestically.
More specifically, in late 1961, President Kennedy approved a joint recommendation of the Departments of State and Defense to initiate, on a limited scale, defoliant operations in Vietnam. Initially, the aerial spraying was to take place near Saigon; its purpose was to clear the thick jungle canopy from around roads, power lines and other lines of communications in order to lessen the potential of ambush. There was also to be some hand spraying from the ground around gun emplacements and the like to reduce surprise attacks and maintain open lines of fire.
The use of defoliants for any other purposes other than clearing for roads or lines of communication was opposed by the State Department, in particular, Secretary of State, Dean Rusk on the ground that use of such chemicals would alienate those Vietnamese that the USG wanted to remain friendly to its ally in South Vietnam. Others in the Department of Defense sought to use these defoliants against crops available to the Viet Cong, then considered a small insurgency.
Kennedy requested a legal opinion as to the legality of the use of defoliants as weapons. The opinion provided by Rusk related to the very narrow initial proposal for use in clearing communication and transportation routes. The opinion provided by Rusk relied almost exclusively on the 1945 opinion authored by Major General Myron Cramer, the Judge Advocate General who wrote a similar opinion regarding a proposal by the military to use defoliating agents/herbicides against the Japanese in the Pacific theatre during World War II. This use had been proposed to both deprive cover and food to the Japanese on the Pacific Islands.
While defoliating agents were not used against the Japanese, Cramer evaluated, inter alia, whether the use of such weapons violated the ban on poison or poisoned weapons outlawed by Article 23 of Hague Conventions of 1907 which the United States had ratified. Cramer’s opinion made the very important point that because the chemicals destroyed plants they could be considered a poison, outlawed under Hague. But he did not think the Japanese would be able to use this argument effectively against the United States because the Japanese used strychnine to kill Russian Military dogs during the Russo Japanese war. In other words, the use of herbicides could be considered outlawed by the prohibition against the use of poison in war, but the US would not be called to account by an equally offending adversary. In the end, Cramer opined that these agents could be used but he conditioned the use of these agents on whether such chemicals produced poisonous effects upon enemy personnel, either from direct contact or from ingestion of plants and vegetables which have been exposed thereto. If they poison directly or indirectly they are not permitted under international law.
Cramer further assumed that the contemplated agents were not toxic. He noted, “whether [the] agents used as contemplated are toxic to such a degree as to poison an individual’s system, it is a question of fact which should definitely be ascertained. Should further experimentation show they are toxic to human beings, I will be pleased to express my opinion on the facts which may be presented for consideration.”
Rusk gave the legal opinion to President Kennedy which allowed for the limited use of herbicides, but it was based on the understanding that the herbicides which were going to be used are not harmful to humans, animals or the soil, that is, are harmless to personnel or animals, and are the same kind that are used by farmers against weeds.
We know from history that the admonition from both Cramer and Rusk as to the safety of these herbicides proposed for use was totally ignored. While there is significant information that the US military wanted a completely safe defoliant, their actions belied that desire. At the Defense Department’s First Defoliation Conference to review Vietnam spraying operations, “Brigadier General Fred J. Delmore alerted the company representatives, including those from Dow and Montsanto, that there was a need for the defoliants to work in a quicker fashion and that the material used in the defoliants must be both ‘perfectly innocuous to man or animals but able to do its job.” Additionally, Albert Hayworth, chief of the Fort Dietrich program coordination office told those attending the conference: ‘It goes without saying that the materials must be applicable by ground and air spray, that they must be logically feasible, and that they must be nontoxic to humans and livestock in the affected areas.’” See Doyle, Jack, “Trespass Against Us: Dow Chemical and the Toxic Century,” Common Courage Press, 2004 p. 56.
Dow officials, in response, and extrapolating from its experience with agricultural herbicides told General Delmore in 1963: “We have been manufacturing 2,4,D and 2,4,5,T for over ten years. To the best of our knowledge none of the workmen in these factories have shown any ill effects of working with these chemicals. Id at 56. When Dow workers began suffering from chloracne after a 1964 industrial accident at its Midland plant, this was not reported to the government. Id. p 57.
Prior to its use in Vietnam, the U.S. military had not undertaken any Agent Orange toxicological testing of its own before ordering and deploying the chemical. The approval by the Army Chemical corps scientists of Agent Orange as safe was based on data received directly from V.K. Rowe, Dow’s chief toxicologist. Id. at 57.
According to Thomas Whiteside in his book “The Pendulum and the Toxic Cloud” the “American military, having developed 2,4,5,T as part of its biological warfare program in the years following the Second World War, unhesitatingly employed it during the war in Southeast Asia….without the Pentagon’s scientists ever having taken the precaution of systematically testing whether the chemical caused harm to the unborn offspring of as much as an experimental mouse.” (Whiteside is quoted Id. at p. 57).
The chemical companies which sought to protect a lucrative government contract and lucrative domestic business failed to disclose to the government the results of their internal testing. See April 19, 1983 New York Times article entitled“1965 Memos Show Dow’s Anxiety on Dioxin.” The memos referred to were part of those filed in the US Veterans case and mentioned to some extent in the various decisions. These memos clearly show that Dow had described the results which showed severe liver damage in rabbits and the fact that Dow could not find a a no effect level in the rabbits regardless of the level of exposure.
As reports of increased miscarriages, stillbirths and birth defects in Vietnam as well as domestically began to gain the attention of US scientists, it turned out that the National Cancer Institute had already (in 1962) contracted the Bionetics Research laboratories of Bethesda Maryland to conduct cancer studies on a number of pesticides including 2,4,-D and 2,4,5-T. The study was to be reviewed by a “blue ribbon” commission of scientists.” When in the summer of 1965 Bionetics tests on female mice and rats showed that 2,4,5,-T was a powerful teratogen, Dow objected that they had used a dirty sample. Id at 58.
Unfortunately, through a combination of industry pressure and White House concern that the report would feed growing anti-war sentiment, the report was not made public until 1969. When the Bionetics Study was eventually made public, the government ordered restrictions and later a ban on its use both in Vietnam and domestically.
The legal analysis above alleged in the case filed by the Vietnamese victims claims under the Alien Tort Statute which allows aliens to seek damages in tort for violations of the law of nations and treaties.
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 Vietnamese 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.
We currently have until October 6 to file with the US Supreme Court.
The Tragedy of Not Testing These Agents Before Using Them
The Cramer Opinion relied on by Dean Rusk and by extension President Kennedy required there to be research on the effects of defoliating agents before they were used. Ignoring this advice has had disastrous consequences for millions of people throughout the world inside and out of Vietnam. Below are several items which need to be understood about the impact of the failure to follow the Cramer opinion and the refusal to stop using these weapons as soon as scientific evidence regarding their use began emerging from the Bionetics study.
1. Beyond the scope of the environmental and human disaster which has been documented, the tragedy of the use of these chemicals before they were tested is that the dioxin in 2,4,5-T did not have to be present. It is an impurity in 2,4,5-T which could have been virtually eliminated had the chemical companies manufactured it at low temperatures over a longer fabrication period. It is known that dioxin did nothing to add to the defoliating characteristics of the other compounds, so there was no military reason in the world for the dioxin to be present in these agents.
2. There is no doubt that in Vietnam the agents were sprayed in at least 10 times the concentrations as they were in the US for weed control function. As noted in the seminal study by Jeanne and Steven Stellman et. al. from Columbia University, entitled: The Extent and Patterns of usage of Agent Orange and other Defoliants in Vietnam”, (Nature Volume 433, 17 April 2003, pp 681-687), millions of Vietnamese (between 2.1 and 4.8 million) would have been present in the more 3,181 hamlets when the spraying occurred. It is estimated that the equivalent of 600 kilograms of pure dioxin was sprayed or spilled during the Vietnam war. (See report of seven year study conducted by Canada’s Hatfield Consultants, Wayne Dwernychuk).
3. It is now known that dioxin acts like a hormone. It gets to the receptors in the cells of a developing fetus before the normal hormones and directs the cells to do abnormal things. The cell’s nucleus is protected by a “defense perimeter” which has the role of preventing the molecules not having required structure from entering the nucleus and therefore interfering with the genetic heritage. But, within cellular cytoplasm (i.e. the whole of cell’s elements except the nucleus) dioxin blends with a component, naturally present in every cell, the aryl-hydrocarbon receptor and will be able to enter the cellular nucleus’ defenses, “passing itself off “ as a hormone. It is that complex dioxin-receptor which will mix-up the hormonal messages of our endocrinal system (the whole of glands with internal secretion, throwing in blood the produced materials called hormones) and will activate some parts of DNA, areas so-called “dioxin sensitive” and therefore produce toxic effects.
Even before the mechanisms of action were known, studies had shown some correlation between exposure to Agent Orange and many diseases. This has allowed the US government’s Veterans’ http://veteransinfo.org/id4.html Administration to officially recognize 13 medical conditions linked to Agent Orange in soldiers who were exposed. These veterans are entitled to disability payments and medical care. (See http://veteransinfo.org/id4.html). The diseases include leukemia, Hodgkins and non-Hodgkins lymphoma, cancer, dermatological complications, and mental retardation, as well as type II diabetes. IARC (the International Agency for Research on Cancer, a part of the World Health Organization) has recognized dioxin as a known human carcinogen since 1997.10
4. In the southern part of Vietnam within the Agent Orange spraying zone, it is estimated that over 800,000 people continue to suffer serious health problems and are in need of constant medical attention and untold thousands have already died. As many as 2-4 million Vietnamese are thought to be suffering from the effects of exposure to Agent Orange, according to Kenneth Herrmann, director of the Vietnam Program at the State University of New York at Brockport.
Recently the Dialogue group reported that it will cost at least $14 million to remove dioxin residues from just one site around the former US airbase in Danang. The cost of a comprehensive clean-up around three dioxin hot spots and former US bases is estimated at around $60 million. The $3 million pledged by US Congress last year is a pathetically inadequate amount set against the billions spent in waging war and deploying weapons of mass destruction. Furthermore the $3 million has not been distributed.
The recent study of one Agent Orange hot spot, the former US airbase in Danang, (http://vn-agentorange.org/military_20070615.html) http://vn-agentorange.org/military_20070615.html found dioxin levels 300 to 400 times higher than internationally accepted limits. The study confirmed that rainwater had carried dioxin into city drains and into a neighboring community that is home to more than 100,000 people. Dr Arnold Schecter, a leading expert in dioxin contamination in the US, sampled the soil around former US airbase in Bien Hoa in 2003 and found dioxin levels that were 180 times above the safe level set by the US environmental protection agency. The US government was aware of these findings in 2003. In terms of being able to test the soil and the water, each test costs about $600 to $1,000. To do widespread testing is cost prohibitive for the Vietnamese.
5. Veterans from the other countries who served with US soldiers in Vietnam are now seeking and in some cases receiving compensation for their injuries. The Vietnamese government and the organization representing the victims, the Vietnam Association for the Victims of Agent Orange (VAVA), try to provide assistance to the victims they have identified in various amounts and for different services. But, the reality is, despite significant development in Vietnam, the government does not have the resources to address this public health crisis either for treatment, monitoring or clean up.
Based on the above legal analysis, and the high cost of remediation, the United States and the Chemical companies have an obligation to provide assistance to the Vietnamese. There is a need to right a colossal wrong.
The law suit may not be successful, but this case has sparked a movement both in Vietnam, and in the US to recognize the wrongs committed and the need for righting that wrong. Recently Congressional hearings were held by Congressman Faleovamaega of American Somoa on the responsibility to the forgotten victims of Agent Orange.
Through tours such as the upcoming VAORRC one in late September and October, we have a chance to educate the public on the needs of the people who our chemicals have injured.
Through educational events such as these we hope to keep the issue of the victims will remain alive and some modicum of justice will be obtained.