US lawyers vow to seek justice for Agent Orange victims
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:
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
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.
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.
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.
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 allow extensive discovery to show that exposure to Dioxin caused injuries
to Vietnamese people.
you tell us the deadline for submitting your brief and who will be the chief
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 law claims go forward and eventually have a trial on these
issues in a US court.
do you think the Court of Appeals will decide?
We don’t expect to loose
the appeal, but if we do loose, 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. — VNS