AGENT ORANGE/DIOXIN VICTIMS’ OPEN LETTER TO U.S. JUDGES

In more details, on March 10th, 2005, at the U.S. District Court for the Eastern District of New York in Brooklyn, Judge Jack Weinstein dismissed the complaint with the claim that the lawsuit did not hold any legal basis. He concluded, “Agent Orange was not considered a poison under international law at the time of its use by the U.S., even though the substances unintentionally caused toxic influences on the environment in which the people live; the U.S. was not prohibited from using it as an herbicide; and the companies which produced the substance were not liable for the method of its use by the government (the U.S. government is exempt from the lawsuit, as it was not a party in the lawsuit).” Jack Weinstein also said that the Vietnamese plaintiffs did not rely on any basis of the domestic law of a state, a country or any form of international law and the plaintiffs could not prove that Agent Orange itself caused the diseases listed in the complaint as of the time the lawsuit was filed; the plaintiffs still lacked intensive and extensive research on the effects of the defoliant on human health.

On August 22nd, 2008, the Second Circuit Court of Appeals in Manhattan, New York rejected the petition and kept the sentence issued in the first instance!

On March 2nd, 2009, the U.S. Supreme Court also rejected the petition of the Vietnamese victims of Agent Orange/Dioxin.

Based on the judgment of Judge Jack Weinstein, the Vietnamese victims of Agent Orange/Dioxin raise the following issues:

1. Under the law of the United States or of any countries and under international law, the hearing of a lawsuit must be based on the current law of the host country and international law, based on witnesses and evidence related to the lawsuit. There is no need to argue over that! However, it is important for the judges to thoroughly review all evidence of the case. They must examine carefully the motives of the plaintiffs and the defendants and they must work out whether the activities of the accused were accidental or intentional and what the true nature of the wrong-doings was and to what extent the consequences of the violation reached.

2. According to Judge Jack Weinstein, “Agent Orange was not considered a poison under international law at the time of its use by the U.S., even though the substances unintentionally caused toxic influences on the environment in which the people live in.”

There’s a question for Judge Jack Weinstein: As we know, “water and vodka” are human companions (not prohibited). If someone is forced to drink the liquids excessively, leading to serious illness, even death, then could the court ignore this act calling it accidental or intentional? Could the court judge the case as using prohibited or not-prohibited substances while it really causes serious consequences? In this case, if accidentally, lighter punishment applies and heavier penalty must be imposed if intentionally. The court could not rule that the defendant is innocent, could it?

Now let’s take a look back upon your statement, “Agent Orange was not considered a poison under international law at the time of its use by the U.S.” True! But please make it clear that herbicides are probably produced for the agricultural and forestry sectors only and there are instructions for usage, which clearly prescribe the doses for killing weed, helping crops grow favorably. That is the right use of herbicides. However, in Vietnam, the U.S. Government (via the U.S. armed forces) turned these agricultural and forestry products into a tool of war. They used the herbicides with high concentration of toxic chemicals repeatedly in vast areas of land, not for killing weed as you argued, but for intentionally destroying millions of hectares of forests in Vietnam, exposing millions of people to dioxin, destroying the eco-environment of Vietnam, causing long-lasting consequences to the country and local people. The truth is the U.S. troops intentionally used a chemical banned by the international community at a brutal level to meet the purpose of its war. Can we call it a crime now, sir? We cannot say that the act did not violate the international law on war crime because the substance had not been banned at that time. The spraying of Agent Orange/Dioxin during the war in Vietnam clearly demonstrated a “new type” of chemical war employing the substance that was not banned internationally at that time. That act has resulted in catastrophic consequences!

In fact, that crime has been known to the whole world. It was the human conscience and peace-loving people in the world (including the progressive Americans) that helped and struggled to reveal the crime, prevented and forced the U.S. Government to end that crime after 10 years (1961-1971). The reaction took place internationally right from the early years when the U.S. Government started to launch “Operation Ranch Hand,” which served as a raised voice strictly calling for “banning the U.S. Government from using” Agent Orange/Dioxin, promptly adding what is still missing to international documents. The U.S. Government and U.S. chemical companies cannot plead ignorance of the toxicity of their dioxin-containing herbicides then because right at that time, scientists already published and proved its toxicity. In your view, they just accidentally used Agent Orange/Dioxin. They knew that well, however. Now that it is obvious that the toxic chemical has caused disastrous consequences, should they be punished?

You said that, “The companies which produced the substance were not liable for the method of its use by the government.” We believe that they cannot wash their hands off the crime because the U.S. Government (through the U.S. military) committed that crime for 10 years, raising anger around the world. Those chemical companies knew all about that. They knew that Agent Orange/Dioxin was included in their products. They knew about the wrong use of the herbicides, but for profit, they still turned a blind eye to that crime, continuing to supply their toxic chemical to meet the war purpose for years. Such is complicity! In fact, the defendant should be both the U.S. Government and the U.S. chemical companies.

You also said, “The plaintiffs did not rely on any basis of the domestic law of a state, a country or any form of international law and the plaintiffs could not prove that Agent Orange itself caused the diseases listed in the complaint as of the time the lawsuit was filed; the plaintiffs still lacked intensive and extensive research on the effects of the defoliant on human health.” This is a conclusion of a judge, but the conclusion is not accurate and not satisfactory, as the “American Medical Institute” has recognized U.S. veterans joining in the war in Vietnam as dioxin victims, who also suffered from cancers and have been compensated for that.

3. It is known that the court told a plaintiff-victim, “The defendant asked a former North Vietnamese Army soldier, Mr. Nguyen Van Quy, and learnt that he intruded into the South, crossing the 17th parallel, which was illegal and violating the Geneva Accords signed in 1954...” The conclusion the judge showed that he did not understand anything about the Vietnamese culture. The South of Vietnam is part of Vietnam, like the blood running inside or the flesh on the body of a person, which is the sacred and inviolable territory of Vietnam, constructed and defended for thousands of years now. Therefore, we have the right to affirm that not only Quy, but thousands or tens of thousands of other Vietnamese people would do the same for the struggle against foreign invaders to defend the independence and integrity of the Vietnamese Fatherland. A question should be raised here as, “Basing itself on which agreement did the U.S. Government send tens of thousands of troops to Vietnam, causing great pains to the country and its people?” That question is especially for U.S. judges.

Besides Vietnamese lawyers, “the lawsuit of the Vietnamese victims of Agent Orange/Dioxin,” was supported and provided with legal consultation by experienced international lawyers. They did that due to their conscience and responsibility. Therefore, it can’t be like what you concluded. The plaintiffs will keeping fighting to the end for justice for the victims of Agent Orange/Dioxin in Vietnam.

Senior Colonel Nguyen Duc Liem