Dow-Monsanto-Hercules war crimes case dismissed

The First Act in the Agent Orange/War Crimes trial is now over (William Glaberson, New York Times). The War Criminals won. Excuse me. They aren't war criminals. The first requirement for being a war criminal is whether your side lost and is subject to the power of the opposition. That's why Saddam is a War Criminal, but Henry Kissinger is a NewsHour guest.

Those minor issues aside, United States District Court Judge Jack B. Weinstein decided last week that supplying poison to the US military to defoliate vast swaths of jungle and contaminate the environment in the process wasn't 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 United States 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 the use of 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 barred the use of Agent Orange.

"The prohibition extended only to gases deployed for their asphyxiating or toxic effects on man," said the decision, issued in response to a motion for dismissal by the defendants, "not to herbicides designed to affect plants that may have unintended harmful side-effects on people."

So if you despoil the environment with a poison that as "collateral damage" kills people and deforms their infants, that's OK, even if documents show you knew the toxic contaminant dioxin was in the herbicide and that it caused health effects. Thus the big chemical companies who did it (Dow, Monsanto, Hercules) don't have to pay a penny to any Vietnamese citizens, even though the same companies paid $180 million to American veterans in 1984.

Weinstein's decision seemed to rest heavily on the question of whether Agent Orange was a "poison gas" or not, a narrow technical interpretation irrelevant to the questions of simple justice involved here. But this is about what is right. The Judge could easily have gone the other way and done so within the Law. Indeed he ceded many crucial points to the plaintiffs:

Though he ruled against the Vietnamese plaintiffs, Judge Weinstein agreed with many arguments put forth by their lawyers. He rejected arguments of the Justice Department that the court had no place in reviewing military strategies adopted by President John F. Kennedy and his successors.

Saying "presidential powers are limited even in wartime," Judge Weinstein said American courts had the power to decide whether presidential decisions about the conduct of a war violated international law.

"In the Third Reich," the decision said, "all power of the state was centered in Hitler; yet his orders did not serve as a defense at Nuremberg," where war crimes trials were conducted after World War II.

Similarly, he rejected an argument from the chemical companies that they were shielded by rules that typically protect military contractors from suits for providing war materiel.

Clearly writing to influence courts in the future, Judge Weinstein used sweeping language and employed extensive citations to historical, military, scientific and legal writings.

If supplying contaminated herbicide had been a war crime, Judge Weinstein wrote, the chemical companies could have refused to supply it. "We are a nation of free men and women," he wrote, "habituated to standing up to government when it exceeds its authority."

So the Judge got to look high minded and sound off on "matters of principle" without having to take the heat for calling a spade a spade: the chemical companies aided and abetted war crimes.

Plaintiffs said the case will be appealed.