Thursday, March 10, 2005

Agent Orange litigation before Judge Jack Weinstein

Several people have asked me, after seeing various court documents, what connection I've had with the latest (and perhaps last) round of litigation over Agent Orange - this one being Vietnamese civilian claims against the US chemical companies that manufactured the herbicide. Judge Jack B. Weinstein issued a decision today dismissing the claim against defendants. I was an expert witness on international law claims (in the context of an Alien Tort Statute case) for the defendant corporations. I don't think the AP or NYT's stories, linked above, quite get the decision right, but they are the only media summaries at this moment.

(The other expert for the defendants was Yale's Professor Michael Reisman, while former Clinton administration war crimes ambassador David Scheffer filed an amicus in support of the defendants; on the plaintiffs' side were Columbia's Professor George Fletcher and U. of Houston's Professor Jordan Paust - so I was moving in exalted academic company on international law.)

Since the ATS requires as a predicate a violation of international law, I was asked to opine on whether there was a violation of international law as it existed during the Vietnam war in the use of chemical herbicides whether by the US government forces or by the defendant corporations. The principal situations I considered were:

  • Were chemical herbicides such as Agent Orange per se prohibited by the laws of war in effect during Vietnam - rules such as the law of war rule against the use of poisons found in 1907 Hague Regulations 23(a) or the 1925 Geneva Protocol or derivative customary international law? (Ans.: no)
  • Even if the herbicides were not per se prohibited by the laws of war, did the actual uses to which US military forces put such herbicides during the war violate such law of war rules as the rule of proportionality (ie, weighing up military advantage versus civilian harm)? (Ans.: no)
  • Perhaps most interesting of all, during Vietnam or even today, under Nuremberg principles or later international legal developments, was or is there an international law rule allowing corporations to be held liable under international law - could corporations be held liable under international law, e.g., for criminal aiding and abetting? (Ans.: no)

Judge Weinstein's opinion today agreed with the defendants' substantive international law views on whether the US forces or the manufacturing corporations violated international law; he agreed they did not. This effectively killed the ATS claim, since plaintiffs were left with no violation of international law, as required by the statute. His views on corporate liability are more complicated and, truth be told, I am still reading them (the opinion is 233 pages long). There is a great deal in the opinion of interest, including corporate liability, issues of the meaning of the Supreme Court's recent Sosa opinion on the ATS, and much, much more. The NYT story is certainly right in saying the decision uses "sweeping language."

I have asked my school's tech staff to post my expert affidavits to my academic papers site (see links sidebar) but that may take a while; I'll be happy to email them to you if you want them - contact me at school, at

1 comment:

J. said...

I appreciate your insights on this issue. It's been my burden to try to educate my liberal brethern that Agent Orange use did not constitute a war crime, even if the fallout of that use has seen such ill effects on the population. Different argument against the U.S. govt rather than the chemical companies might have played out differently, if it had focused on compensation for noncombatant injuries.