A Non-Lawyer’s Guide to Judge Weinstein’s Agent Orange Decision

 

On March 10, 2005, Judge Jack B. Weinstein of the Brooklyn District Court, New York, issued a 233-page decision dismissing the case filed by Vietnamese victims of Agent Orange (and other wartime herbicides) against US chemical companies who manufactured the herbicides. Judge Weinstein’s opinion is long and complex, covering a broad range of legal precedents and theories of international law. The full decision is available online at http://www.ffrd.org/AO/10_03_05_agentorange.pdf and http://Vietnam-Dioxine.org.

 

The following independent commentary gives a section-by-section analysis of the decision. (For a more concise presentation of the legal questions in the decision, please see the attached summary table.)

 

1. All domestic (US) claims are dismissed by virtue of the government contractor defense—which also was the case in previous cases filed by US veterans exposed to Agent Orange. In essence this means that the chemical companies can say “the government told us to do it and knew at least as much as we did about the dangers” (p. 11).  Plaintiffs failed to establish that the chemical companies knew anything about dioxin that the government didn’t know.

 

Commentary: This finding makes sense given the very close relationships that exist between military contractors and the government to the present day. However, the plaintiffs made a strong argument that the government only ordered the chemical companies to produce herbicides—not herbicides with high levels of dioxin. The judge’s decision also produces a perverse result that the corporations can escape liability because the government was also guilty—while if the government were less guilty the corporations would be liable? To a non-lawyer, this suggests some deficiency in US domestic tort laws.

 

2. International law does apply to this case. The “law of nations…is internalized by [US] courts as law of the US” (15). The government contractor defense “does not apply to violations of human rights [and] norms of international law” (16). However, the plaintiffs failed to establish that the use of herbicides by the US violated international law (17). This is the main grounds for dismissal of the case.

 

Commentary: Judge Weinstein is upholding the validity of international law as binding on the US, something that the Bush Administration’s lawyers tried to deny in their brief to the court. The specific US law that applies here is the Alien Tort Statute (also known as the Alien Tort Claims Act or ATCA), which establishes liability for an action “committed in violation of the law of nations or a treaty of the US.” Thus, in order for the plaintiffs to win damages, they have to show a violation of international law. This is not as easy as it sounds, especially in a US court. Weinstein’s finding that no international laws apply is the key decision that critics have taken issue with.

 

3. Judge Weinstein is not convinced by plaintiffs’ arguments about the causation of their injuries. That is, while he accepts that the plaintiffs were exposed to herbicides, he does not believe that research to date proves that this caused their injuries (18). Later he labels plaintiffs’ claims “anecdotal” and not backed by sufficient epidemiological research (42). The US veterans case that was settled out of court in 1984 is no help in this case since US veterans’ benefits do not require any proof of causation.

 

Commentary: The judge does not say (as has sometimes been misreported) that plaintiffs’ claims are false or unconnected to Agent Orange, just that there is not enough proof to be established in a US court. The US veterans case does apply, though, in the political sense that there was enough belief that health problems were linked to AO to provide compensation. In other liability cases of chemical poisoning by companies (such as the one in California detailed in the movie “Erin Brockovich,” to take a popular example), it has been sufficient to show higher rates of illness among the exposed population, not individual proof. These higher rates have also been shown in Vietnam, in numerous studies conducted by international and Vietnamese scientists. Weinstein’s insistence on “proof” by externally-imposed standards looks like a technicality.

 

4. Agent Orange should be classified as a herbicide, not as a poison—although dioxin is a poison (60-1). The negative effects of Agent Orange are “collateral consequences;” herbicides were not intended to hurt people, only to kill plants.

 

Commentary: This seems unclear and hair-splitting. Agent Orange contains dioxin, so if dioxin is considered a poison shouldn’t Agent Orange also be? The dosage involved was sufficient to harm people. This is a key weak point of the decision that could be re-examined on appeal.

 

5. No injunctive relief can be provided since this would be “impracticable” and involve a US court going to another country to supervise relief, in this case environmental testing and cleanup. This would raise questions of enforceability and perhaps infringe on Vietnam’s sovereignty. A US court has no jurisdiction to order relief.

 

Commentary: Injunctive relief here means the court ordering action to be taken, as opposed to awarding monetary damages to plaintiffs. Weinstein is excluding this possibility in advance on what he believes to be practical grounds. Once again, this seems to show weaknesses and limitations of US law. Corporations can go around the world and destroy the environment, but US courts have no power to order cleanup? Of course, Vietnam and other countries are also lacking laws to cover these situations. Vietnam is known as a country that is normally quite sensitive about its own sovereignty, but it is difficult to imagine Vietnam objecting in any way to a US court-ordered cleanup of Agent Orange hotspots or former US military facilities.

 

6. The Vietnam Association for the Victims of Agent Orange/Dioxin (VAVA) is a legitimate organization with standing to sue (73-4), not a government body or a false class. It does represent its members, who also have standing to sue as individuals.

 

Commentary: Here Judge Weinstein is rejecting one of the more far-fetched claims made by defendants, which can essentially be reduced to Red-baiting (since Vietnam is governed by a Communist Party, anything anyone does in Vietnam is suspect). Weinstein is right to throw this out and accept VAVA’s legitimacy.

 

7. It is possible to sue corporations for violations of international law in some cases. Corporations should have no blanket exemption (78-90).

 

Commentary: This seems obvious, but actually the corporate lobbies in Washington have pressed Congress and the Supreme Court to grant them this sort of exemption. It’s interesting how corporations can be considered as “individuals” under the law when it suits their interests, but they then try to escape this status when it doesn’t. This decision may form a precedent allowing for future lawsuits against other corporations for other alleged violations of international law. Good job, Judge.

 

8. The Alien Tort Statute has no fixed statute of limitations, nor do the other relevant instruments of international law considered in the case. Thus “there is good reason not to create or apply general hard and fixed rules…or relatively short statutes of limitation, newly minted by judicial fiat, in the developing area of international law” (93). Weinstein opens the possibility that this question could be re-examined on appeal

 

Commentary: This weakens what had been viewed as one of the main obstacles to the suit going forward. Different laws have different statutes of limitations—particularly US domestic laws. In this instance, Judge Weinstein is applying the law flexibly: if there is no fixed limit stated in the law, none should be imposed.

 

9. Defendants’ contention that plaintiffs’ case interferes with US conduct of foreign relations is denied. This is what is known as the “political question doctrine,” but Weinstein finds no coherent definition of what this doctrine actually means. He criticizes the US Department of Justice (DOJ) for failing to accept that the US is also bound by international law and having an “inflated understanding” of executive branch power (116). There should be no exception for wartime—presidential powers are limited even then. Courts always have a role when international law is concerned (108).

 

Commentary: Here Judge Weinstein throws out a large portion of the brief submitted by the US Government, in particular the contention that the executive branch can decide on its own what international laws to follow. Instead, he agrees with the friend-of-the court brief filed by the Center for Constitutional Rights and other NGOs.

 

10. Issues of war reparations do not apply in this case. This is not a government-to-government case but a tort suit between private parties (117, 124). Weinstein notes that no reparations were paid or even discussed after the Vietnam War, in contrast to World War II and other wars (121).

 

Commentary: This rejects the defendants’ and DOJ’s contention that the plaintiffs are seeking reparations—as if that should be a crime. Weinstein does not mention that then-Secretary of State Kissinger promised reparations to Vietnam in the 1973 Paris peace negotiations, then reneged on his promise. In fact, Vietnam is paying the US reparations of a sort, in the form of “debt payments” from the former Republic of (South) Vietnam that Vietnam was forced to assume in 1997. A Congressionally-mandated Vietnam Education Foundation now uses half of the amount of these payments for scholarships.

 

11. Judge Weinstein leaves open the possibility of more information about AO coming out in the appeals process. The judge writes, “Should the Court of Appeals for the Second Circuit reverse dismissal on the grounds addressed in the present memorandum, the court will grant extensive discovery on the relevant general epidemiological and individual medical causation issues before addressing that problem” (128).

 

Commentary: This means that Weinstein is not willing to throw the suit out solely because of what he sees as the lack of sufficient proof of causality discussed in #3 above. This seems to open the door for an appeal if there is new research on the linkages between dioxin and human health.

 

12. In order to prove their international law claims, plaintiffs need to show the following: (a) usage of herbicides was illegal under international law, (b) defendants knew how product would be used, (c) they supplied product and became party to illegal action (141). In the judge’s opinion, (b) and (c) can be shown, but not (a). Defendants could not use a necessity defense as there was no dire penalty to them if they did not comply with government contracts (154).

 

Commentary: This section relies heavily on precedents from the Nuremberg trials after World War II. In those cases the defendants attempted to show that (b) they did not know that products they supplied would be used in Nazi death chambers. These three questions are related to the government contractor defense, which Weinstein rules does not apply for international law claims, as it did not apply in the Nuremberg trials. It is interesting that this ruling appears to set a higher standard for government contractors outside the US than inside (where they can avoid liability through the contractor defense as in #1 above). Yet many of the Nuremberg cases took place within Germany, not internationally, and international law also applied in those cases. If international law trumps the contractor defense, why is this also not true within the US?

 

13. The judge next evaluates the intent of herbicide use in Vietnam and finds that herbicides were not “used to intentionally inflict pain and suffering. They were used to kill plants” (175-6).  Harming people was “collateral” and “merely as a side effect” (184). As a result, many areas of international law (torture, extrajudicial killing, genocide) cannot apply to this case since these all require showing harmful intent.

 

Commentary: Plaintiffs argued that defendants were “wanton and reckless” in producing herbicides that they knew contained dioxin and thus would harm people. The fact that the agents were primarily designed to defoliate plants is no excuse. It seems that Judge Weinstein is confusing the defendants (chemical companies) with the people who directly used the herbicides (US soldiers). The soldiers did not know the extent to which herbicides were dangerous and did not use them to intentionally inflict pain and suffering. The companies, however, did know this and yet intentionally continued to produce products with high concentrations of dioxin. Of course, confusing the companies with soldiers and the government is exactly the strategy that the defendants took in several of their briefs to the court. The amount of the companies’ foreknowledge, and hence intent, should be taken into account in an appeal. Cigarettes, asbestos, and many other products were not designed to harm people, but they do, and the companies that produce them have been found liable for this harm since they knew about it in advance and said nothing.

 

14. Most of the remainder of the decision examines specific conventions and definitions of international law and whether these apply to the Agent Orange case. Judge Weinstein believes that no law in force at the time the US used herbicides in Indochina does apply. The US was not party to conventions against chemical weapons until after the use of herbicides, and these treaties are not retroactive. Similarly, the US did not join the genocide convention until 1988.

 

Commentary: Thus, if a legal ground is to be found, it needs to be on the basis of a convention that the US was party to at the time, or on the basis of “customary international law,” that is a practice that was accepted by the world community at the time and thus can be considered binding even on countries that have not acceded to relevant treaties. Plaintiffs also made arguments based on proportionality, that excessive use of herbicides could give rise to a violation even if limited use would not. Judge Weinstein did not accept this argument either.

 

15.  The US was party to at the time to the 1907 Hague Convention, which bars the use of poisons and weapons “calculated to cause unnecessary suffering” (182). Weinstein finds that neither of these applies to Agent Orange since herbicides were not a category thought of at the time. The Hague Convention, he believes, did not apply to chemical gases since these were used heavily in World War I.

 

Commentary: The argument that a convention does not apply to a class of weapons because the weapons were later used in combat seems circular. Could one not also say that the belligerents in World War I used gas illegally? The fact that they justified their actions by a technicality should not greatly matter.

 

16. The US was not party to the 1925 Geneva Protocol on chemical weapons until 1975. Even then, it kept the view that the protocol does not apply to herbicides. Weinstein finds that the Geneva Protocol “leaves considerable room for divergent interpretations” (189). The judge concedes that he is following a “restrictive reading” of international law, in which prohibitions only apply to specific weapons, not general classes.

 

Commentary: In his rulings on the applicability of the Alien Tort Statute (#2, 7, 8, 9 above), Judge Weinstein appears to favor a broader interpretation of the spirit of the law. Here he is restrictive. Why the contradiction?

 

17. Customary international law, the judge believes, requires an international consensus. But other countries also used herbicides, specifically the British in Malaya in the 1950s. Secretary of State Dean Rusk relied on this example to argue to President Kennedy that US use would be permitted. And the Convention on Chemical Weapons was believed at the time to apply only to members on a reciprocal basis, not to form customary law. No specific ban on herbicides existed.

 

Commentary: The argument that there was no international consensus relies too heavily on US opinions. It is incontestable that the US leaders who ordered the use of Agent Orange believed (or said they believed) that it was not against international law. But shouldn’t their views be discounted here, as they had a clear interest in saying so? The decision does not cite any Vietnamese views at all, although one could argue that (North) Vietnamese views at the time could also be discounted as they had a clear interest in saying herbicides were illegal. What about the views of other countries in the international community (other than the US-British “coalition of the willing”)? In an international law case, their opinions matter too.

 

18. In 1969, the UN General Assembly voted 80-3 for a resolution condemning herbicide use as a weapon of war. The resolution was clearly aimed at US use of Agent Orange. However, GA resolutions are not binding and are only recommendations (197-8). Fifty countries abstained from the vote. And if a similar resolution had been introduced in the Security Council, where it would have been binding, it would have failed by a US veto. Hence the GA resolution cannot be considered a statement of generally accepted international law (201-2).

 

Commentary: Again this relies far too much on US interpretations of what was legal or not. It is reasonable to suggest that the countries who abstained might have done so for a number of reasons, including a desire not to offend the US. In the overall picture the clear weight of international opinion was against the use of herbicides. In fact, this was a reason behind the US decision to stop the Ranch Hand program in 1971. One interesting argument made by the plaintiffs that does not appear in the judge’s decision is that by storing herbicides in unmarked barrels and spraying them from planes falsely marked with South Vietnamese insignia, the US showed it was aware that use might have been illegal under customary international law.

 

19. The judge concedes that international environmental law has evolved since the US spraying of herbicides was stopped, and what he believes was not illegal then may well be now. This occurred in large part as a reaction to US use in Indochina. The US ratified the Geneva Protocol in 1975 and issued a separate executive policy renouncing first use of herbicides in wartime. However: “Since the herbicide use by the United States complained of by plaintiffs ended years before 1975, the April 1975 declaration of President Ford and the action of the Senate in ratifying the 1925 Geneva Protocol and the Biological Weapons Convention in April 1975 did not retroactively make illegal United States’ use of herbicides in Vietnam” (232).

 

Commentary: It seems particularly convenient for the defendants in this case that herbicide manufacture and use can be considered legal from 1961-71 and illegal only starting in 1975. One wonders whether war crimes, genocide, and the like could be defined so restrictively by a court. The fact that the US changed its policy after the Vietnam War is clearly a sign of progress, but can also be seen as a recognition that it was behind the times—after all the Geneva Protocol had existed for 50 years at the time.

 

20. For these above reasons (#14-19), Judge Weinstein concludes that there is no international law that can apply in this case, and it is dismissed (232-3).

 

Commentary: The reader may agree or disagree with various aspects of the decision (just as this analyst does), and it is hoped that a more nuanced understanding than “wonderful” or “immoral” will result. The decision is not final and can be appealed to a higher court (first to the US Second Circuit Court of Appeals, finally to the US Supreme Court).

 

 

 

--Andrew Wells-Dang

Fund for Reconciliation & Development

17 March 2005