Agent Orange in Court:
double standards
Ms Tran To Nga is a French woman of Vietnamese origin who was contaminated by Agent Orange. Since 2014, she has been taking legal action against 14 manufacturers and suppliers of the defoliants which the US army sprayed on Vietnam during the war. Her case was dismissed on 10 May 2021 by the court at Evry. This is not the first time that a Vietnamese victim has been denied while American veterans, with the same pathologies associated with Agent Orange, have been compensated. Why these double standards? It is useful to recall the facts.
During the Vietnam War, in order to starve out resistance fighters and destroy their hideouts, the US military discharged 73 million litres of herbicides and defoliants over crops and over the jungle. These chemicals were called 'agents' - white, blue, orange - after the colour of the stripes painted on the metal storage drums. Agent Orange, by far the most frequently used, contained Seveso dioxin, an extremely toxic poison that causes serious illness, degrades only very slowly and can be passed on from generation to generation. This is why it continues to claim victims today.
What about former US soldiers who were contaminated by the defoliants they had used in Vietnam? Having returned to the USA, in 1977 they filed claims for compensation with the government for illnesses which they associated with their exposure to Agent Orange.
When their claims were rejected they took legal action against the companies that had produced and sold the toxins to the US government. In 1984, to avoid a lawsuit they feared losing, these companies agreed to an out of court settlement, paying $180 million to a veterans' compensation fund. In return, the veterans withdrew their claims and undertook not to file further claims. In total, 52,000 veterans were compensated and with the $180 million spent, the fund was closed in 1997.
Furthermore, the American veterans won a second fight. In 1991, the US Congress passed the Agent Orange Act, which ordered the Department of Veterans Affairs to ask the National Academy of Sciences (NAS) to conduct studies to determine the effects on health of exposure to the herbicides and defoliants used during the Vietnam War. In 1995, the NAS published a preliminary list of diseases linked to contamination by these chemicals. Currently, 14 diseases are on this list and the US government has agreed to compensate its contaminated veterans.
What is the situation now for the Vietnamese? Following official recognition by the United States of the link between 14 diseases and Agent Orange, Vietnamese victims of this poison founded the Vietnamese Association for Victims of Agent Orange (VAVA) in 2003 and filed a class action lawsuit in Brooklyn, NY, against 37 defoliant manufacturers (including Dow Chemicals and Monsanto) in 2004 for crimes against humanity and war crimes.
The court dismissed their case on the grounds that the use of defoliants and herbicides as weapons of war was not prohibited by law. But this is a specious argument. In fact, on 17 June 1925, 38 nations had signed the Geneva Protocol, an agreement prohibiting "the use in time of war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices".
The United States was one of the signatories of this treaty " but for 50 years failed to ratify it. Only on 10 April 1975, two weeks before the end of the Vietnam War, did it finally ratify the protocol. Thus - the height of the ridiculous - the Brooklyn court was able to affirm that the use of chemical weapons by the US army was perfectly legal during the Vietnam War and therefore the United States had not committed any war crimes or crimes against humanity during that war. How pertinent is this argument when more than 140 countries have adhered [1] to the Geneva Protocol? Has not the United States been on the margin of international law for half a century? Vietnamese victims appealed to the US Supreme Court but the appeal was rejected in 2009. All seemed lost.
But hope was born in 2013 when France passed a law allowing a French victim of a wrong committed abroad, by a foreigner, to bring a complaint before the French courts. Ms Tran To Nga, a French-Vietnamese resistance fighter contaminated by Agent Orange, was thus able to sue 17 chemical companies that had produced and supplied defoliants to the US Army. Her case was dismissed on 10 May. The arguments developed by the judges of the court at Evry [2] , who found her application "inadmissible", are worth reporting. The judges first note that:
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