Vietnam News Agency (Hanoi, Vietnam)

Agent Orange victims are appealing the dismissal of their lawsuit against the US chemical firms that made and supplied the chemicals sprayed over Viet Nam during the war. Briefs will be submitted to the US Court of Appeals on September 30.

We will attempt to get “the decision by the District Court reversed and get the case reinstated,” said Jonathan Moore, who led a delegation of US lawyers to Viet Nam from September 13-18.

Purpose of the visit was to consult with the Vietnamese Agent Orange Victims Association (VAVA) about the upcoming appeal and Moore was answering questions from Vietnam News Agency reporters in Ha Noi during the weekend. The edited interview follows:

Please speak about your working visit and talks with the VAVA?

The purpose of our visit has been to consult with our clients in the VAVA about the upcoming filing of our brief in the Court of Appeals, New York, where we will attempt to get the decision by the District Court reversed and get the case reinstated.

We believe that we can convincingly demonstrate why this case should go forward; why it’s so important not only to the Vietnamese but to all people of the world who care about justice and the riveting violations of international human rights.

And in that context, we’ve had very frank discussions with our colleagues at the VAVA and that’s proved to be an invaluable source of both information and inspiration for us.

Although it is many years removed and generations away from the American War that took place in Viet Nam, there is a lasting effect of that war, the consequences of which must be addressed. This is really the last and most important opportunity for us to do it.

Why do you want to help the victims?

Our motives are to seek justice for the victims of exposure to dioxin, pure and simple. This is a very important case not only in Viet Nam but around the world, on the issue of accountability and responsibility for those companies like the defendant companies, and the other chemical companies that produced a product that they knew contained a poison, that they knew didn’t have to contain that poison. This is not a case just about herbicides, this is a case about the spraying of deadly poison across the land of Viet Nam.

How many people in America know about the lawsuit and what are their opinions?

Unfortunately the interest is not as high as it should be but we believe that there is some growing interest in seeing that victims are compensated and that the land that has been contaminated be cleaned up. It’s a long and hard struggle to get people’s attention to these issues, as there are a lot of things going on in the US that capture people’s attention right now.

In your opinion, what are important arguments and convincing evidence that will be shown in the Court of Appeals?

We think the most important argument is that the court in dismissing the case in the District Court misinterpreted what our facts were. That court focused on the use of an herbicide only, and not on the fact that this herbicide contained a poison. We think it’s quite strange that the court did that, but they did that anyway. Our main argument on that issue will be demonstrated to the Appeal Court that the District Court got it wrong and misconstrued the facts and therefore the court should reverse the decision of the District Court dismissing the case and send it back to trial.

The second major point is the use of an herbicide that contained a poison that did not have to be in there, that could have been kept out under the existing industry standards at the time, that it was used and is, now, a violation of customary international law that bans the use of poisons as a weapon of war. We think that when the Court of Appeals clearly understands what our facts are they will have no difficulty in applying the law to find that the use of an herbicide laced with a poison that did not have to be there violated customary international law.

The US government asked for an herbicide that was not dangerous to human beings or the environment. Under these circumstances the conduct of these chemical companies violated international law as it was known at the time. This is not just looking back, this is looking at their conduct at the time. Under customary international law which was accepted at the time, this conduct of these companies violated customary international law.

Our argument that the use of an herbicide that contained a poison violated international law does not rest solely on whether the US ratified the Geneva Protocols of 1925. It is based on several things. One is, the US signed the protocol even though it didn’t ratify it, and under international law having signed the protocol they’re obligated to comply with its terms unless they affirmatively took steps to disavow the principles of that protocol.

We don’t rely only on the Geneva Protocol, there are other international treaties and then there is the established practice at the time which was reflected in the US government’s own manuals that they provided to their soldiers that banned the use of poison as a weapon of war. There are memorandums from high-level members of the US government before the war that said herbicide could be used in war only if it was not dangerous to human beings and the environment.

This herbicide was not simply a weed killer. It was a chemical that was laced with poisons that did not have to be there, poisons that could have been kept out by the existing industry standards, and therefore we conclude that the chemical companies intentionally left that poison there and the use of that poison in the herbicide, the terrible injuries caused by the exposure to that poison violated international law then and now, and that’s what this case is about.

We believe that we have a very strong case. We believe that when you look at this as a moral issue, as an issue of basic justice, as an issue of equality, that the Vietnamese who have been victimised by exposure to Dioxin should be compensated and their land should be cleaned up and we believe that once this court fairly and honestly looks at these issues they will agree with us. All we can do is to make the strongest case possible.

What will, in your opinion, be the greatest difficulty?

The difficulty is that we have to convince the Appeal Court that the District Court was wrong in how it decided this case, that’s a very formidable task that we have to deal with. Judge Weinstein is a well-respected judge. His very lengthy opinion considered all the issues, many of which he decided in our favour but on the ultimate issue we lost. Nevertheless, we think it’s clear when the Appeal Court reviews what he did, and if you understand that what he did was to misconstrue what this case was about and having misconstrued it then misapplied the law, that when the Appeal Court understands that and sees that clearly, we are confident that the court will reverse its decision and we will go back to the same judge who will be more than willing and has already indicated that if the case comes back he will allo

Could you tell us the deadline for submitting your brief and who will be the chief judge?

Our papers are due on September 30. The defendants, the chemical companies, have the right to submit papers in response to ours, and those are due on January 16th of next year. We then get an opportunity to submit an additional writing which will be submitted on March 1. There will then be an argument in the Court of Appeals in front of three judges this time, not one judge, which will take place at a date to be scheduled after all the briefs have been submitted, which will probably take place sometime in late April, maybe May or June of next year.

We don’t know who the judges will be until one week or so before the actual argument. We also were quite disappointed that Judge Weinstein dismissed our claims under international law. He is a judge who is highly respected and regarded in the US. We have speculated a lot as to why he made the decision he did. However, that doesn’t get us to the goal of getting the decision reversed so our focus is really on the next level in the next court in trying to convince the court that we have these claims that should go forward. Even if we had won in the court below, we’d still be at this level on an appeal because had we won, the defendants would have appealed. So we’d still be in this court, and we think we’re in a very strong position given the facts of this case and given our arguments to have these international

How do you think the Court of Appeals will decide?

We don’t expect to lose the appeal, but if we do lose, we will continue to press the issue by appealing to the US Supreme Court and ask the Supreme Court to do the right thing to acknowledge that there was a violation of international law at the time the dioxin was used in Viet Nam.