U.S. Court Throws Out Suit By Vietnam's Agent Orange Victims

by Tran Dinh Thanh Lam

(IPS) HO CHI MINH CITY -- Vietnamese victims of Agent Orange have condemned a U.S. court's decision to dismiss their legal action against manufacturers of the highly toxic defoliant used to destroy crops and deprive communist forces of forest cover during the Vietnam War.

On March 7, a federal court in New York dismissed a legal action brought by Vietnamese plaintiffs over the use of the defoliant by U.S. forces from 1961 to 1971 where large quantities of Agent Orange were sprayed across parts of Vietnam.

The plaintiffs had sought compensation from the firms that manufactured the chemical, which has caused birth defects, miscarriages and cancer. They said use of the defoliant was a war crime against millions.

But U.S. Judge Jack Weinstein ruled there was no legal basis for their claims.

Delivering a 233-page ruling, Weinstein said "there is no basis for any of the claims of plaintiffs under the domestic law of any nation or state or under any form of international law."

"We are disappointed...Weinstein has turned a blind eye before the obvious truth. It's a shame for him to put out that decision. It's wrong, unfair and irresponsible," said Nguyen Trong Nhan, vice president of Vietnam's Association of Victims of Agent Orange (VAVA).

"It's totally ridiculous," exclaimed Tran Xuan Thu, VAVA general secretary. "The Agent Orange laden with the highly toxic chemical dioxin was a poison barred by international laws of war."

Vietnamese victims of Agent Orange filed their suit last January in a New York federal court, accusing 37 U.S. chemical firms including Monsanto, Dow Chemical, Hercules, Occidental Chemical, Ultramar Diamond Shamrock, Maxus Energy, Uniroyal Inc and Wyeth, of producing and supplying toxic defoliants used by the U.S. army in Vietnam.

The lawsuit won mass support in Vietnam where 11.5 million people signed a petition.

This is the first time that Vietnamese citizens have ever sought legal compensation for the effects of Agent Orange, which contains the toxic chemical dioxin linked to cancer, diabetes and birth defects among Vietnamese soldiers and civilians and U.S. veterans.

Exposure to Agent Orange can result in chronic lymphocytic leukemia (CLL), the U.S. National Institute of Medicine said in a 2003 report. The report, based on a reassessment of six studies of herbicide exposure, concluded there was "enough data to support an association of exposure to these chemicals and the development of CLL," a form of cancer of the blood.

Prof. Phan Thi Phi Phi, one of the first three Vietnamese Agent Orange victims to petition for compensation in a U.S. court, said there was ample proof in Vietnam of the horrific effects of the defoliant on humans. He said the U.S. army sprayed over 72 million litres of herbicide over the jungles of Vietnam from 1961 to 1971.

About 44 million litres of these defoliants were Agent Orange with close to 170 kilograms of dioxin, affecting as many as two million Vietnamese.

Ngo Thanh Nhan, a U.S. linguist who participated in the lawsuit campaign, told the local 'Tuoi Tre' newspaper "if the medical files (of Vietnamese victims) are not convincing enough, we will use the ones of the (North) American soldiers..." "There's no reason why those who sprayed chemical products got compensation for their contamination... and the direct victim's suit is rejected by the U.S. court."

In 1984 in a class action settlement manufacturers agreed to pay 180 million U.S. dollars to U.S. war veterans who died or became ill after exposure to defoliants. The judge who decided on this matter was Weinstein.

Linguist Nhan said there were some contradictions in Weinstein's arguments.

"In one part he wants to defend the principle of judicial independence and in the other part he wants to accept the U.S. president's powers to direct U.S. armed forces in wartime," he told the 'Tuoi Tre' newspaper.

"Weinstein did not want to see more 'victims of war' coming to ask for U.S. compensation," added Nhan.

Many international observers agree with Nhan and point out that the case is a test of the reach of U.S. courts as it considers the power of the U.S. president to authorise the use of hazardous materials during a time of war.

"It's not only a legal matter. The two aspects, legal and moral, have to be examined," said Nguyen Van Tuan, an Australian scientist of Vietnamese origin.

But as remarked John McAutiff, executive director of the New York-based Fund for Reconciliation and Development (FRD), in a statement, "Judge Weinstein has made it easier for our country to continue to evade moral responsibility for the consequences of its action."

"Regardless of how much chemical companies and the U.S. government knew about the poisonous dioxin, they should not hide behind legal and scientific technicalities to avoid facing their obligation," said McAutiff, referring to the defendants' argument that neither the U.S. government nor chemical firms knew about Agent Orange's toxic properties.

FRD Hanoi representative Andrews Wells-Dang also said the U.S. should practice what it preaches in accepting responsibility.

"We think the U.S. has a moral obligation to assist people who are affected in the U.S. as well as Vietnam, and regardless of whether the U.S. intended or foresaw those consequences -- that's still a responsibility that we have," said Wells-Dang. "We are very quick to call on others to accept responsibility for their past actions, we should be willing to accept that ourselves as a country."

In theory, Weinstein's Mar. 7 decision can be appealed and then taken to the U.S. Supreme Court.

When asked about her impression about the ongoing lawsuit, Nguyen Thi Oanh, a mother of a boy and a girl she said were deformed by dioxin in Ho Chi Minh City, told IPS: "I hope it would come to something. Someone should be responsible of the toxic chemical that ruined my children's lives."

This is also the hope of VAVA vice president Nguyen Trong Nhan when he met other VAVA members over the weekend in Hanoi to discuss further steps to take in their quest for justice.

"The case will be time-consuming, just similar to the lawsuit suit filed by U.S. veterans. But we believe that we will win," he said. "We will pursue with the lawsuit until justice is done."