Civil Lawsuit on Defoliant in Vietnam Is Dismissed

By WILLIAM GLABERSON

Published: March 11, 2005

n a decision that could close a brutally contentious chapter of America's involvement in Vietnam, a federal judge in Brooklyn yesterday dismissed a damage suit filed on behalf of millions of Vietnamese that claimed American chemical companies committed war crimes by supplying the military with the defoliant Agent Orange.

The civil suit, filed last year, had sought what could have been billions of dollars in damages and the environmental cleanup of Vietnam. The suit drew international attention for its claims about Agent Orange, which was widely used by the American military to clear the jungle until 1971.

The suit claimed that the defoliant, which contained the highly toxic substance dioxin, left a legacy of poison in Vietnam that caused birth defects, cancer and other health problems and amounted to a violation of international law.

The judge, Jack B. Weinstein, of Federal District Court in Brooklyn, sided with the chemical companies and the Justice Department, which argued that supplying the defoliant did not amount to a war crime.

"No treaty or agreement, express or implied, of the United States," Judge Weinstein wrote, "operated to make use of herbicides in Vietnam a violation of the laws of war or any other form of international law until at the earliest April of 1975." Because of sovereign immunity, the government was not sued.

In 1975, President Gerald R. Ford adopted a national policy renouncing the first use of herbicides in warfare. Also in 1975, the Senate ratified an international Geneva accord dating from 1925, which outlawed the use of poisonous gases during war.

The suit claimed that because of the dioxin in Agent Orange, spraying it amounted to using poison during war.

But Judge Weinstein concluded in a 233-page decision that even if the United States had been a Geneva signatory during the Vietnam War, the accord would not have banned the use of Agent Orange.

"The prohibition extended only to gases deployed for their asphyxiating or toxic effects on man," the decision said, "not to herbicides designed to affect plants that may have unintended harmful side effects on people."

The suit was filed as a class action by an association of Vietnamese people who said they had been injured by Agent Orange. William H. Goodman, a lawyer for the association, said the group would appeal. He said the United States Supreme Court could eventually decide the issue.

"The judge missed the point," Mr. Goodman said. "He ruled as a matter of law that what these defendants manufactured was not a poison, whereas even these manufacturers recognized that it was at the time."

The companies have long said that dioxin was an unwanted byproduct of the manufacture of Agent Orange, but claimed that there was no conclusive link to the many serious health problems blamed on the defoliant.

Over many decades, American veterans of the Vietnam War filed suits making health claims similar to those now being pressed by the Vietnamese. Judge Weinstein also handled those cases.

Seven American chemical companies settled the veterans' cases for $180 million in 1984. The same chemical companies, including Dow, Monsanto and Hercules, were sued in the Vietnamese case.

Spokesmen for some of the companies applauded the decision.

"We believe the defoliant saved lives by protecting allied forces from enemy ambush and did not create adverse health affects," said Scot Wheeler, a spokesman for the Dow Chemical Company.

Glynn Young, a spokesman for Monsanto, said Judge Weinstein's decision was correct. "The judge said they didn't make the case," Mr. Young said. "That's a very difficult message for a lot of people to understand because there's so much emotion wrapped up in cases like this."