I’ve got a loose theory about the goose vs gander in global law. In the interest of exploring that theory I’m going to copy an article I read in today’s Globe and Mail.
Agent Orange case thrown out in New York
Thursday, March 10, 2005 Updated at 10:20 AM EST
Associated Press
New York A federal judge dismissed Thursday a lawsuit contending that U.S. chemical companies committed war crimes against Vietnamese citizens by making Agent Orange, the defoliant used during the Vietnam War that allegedly caused birth defects, miscarriages and cancer.
There is no basis for any of the claims of plaintiffs under the domestic law of any nation or state or under any form of international law, U.S. District Judge Jack Weinstein wrote. The case is dismissed.
Lawyers who sued on behalf of some four million Vietnamese argued that Agent Orange, which is laden with the highly toxic chemical dioxin, was a poison barred by international rules of war.
Lawyers for Monsanto, Dow Chemical and more than a dozen other companies said they should not be punished for following what they believed to be the legal orders of the U.S. commander-in-chief.
They also argued that international law generally exempts corporations, as opposed to individuals, from criminal and civil liability for alleged war crimes.
The U.S. Department of Justice filed a brief supporting the chemical companies, saying a ruling against the firms had the potential to cripple the President’s powers to direct U.S. armed forces in wartime.
The lawsuit was the first attempt by Vietnamese plaintiffs to seek compensation for the effects of Agent Orange, which has been linked to cancer, diabetes and birth defects among Vietnamese soldiers, civilians and American veterans.
U.S. aircraft sprayed more than 79.5-million litres of the chemical from 1962 to 1971 in attempts to destroy crops and remove foliage used as cover by communist forces.
About 10,000 U.S. war veterans receive medical disability benefits related to Agent Orange.
The Vietnamese government has said the United States has a moral responsibility for damage to its citizens and environment but has never sought compensation for victims.
I wondered about the comment that “international law generally exempts corporations, as opposed to individuals, from criminal and civil liability for alleged war crimes.” I did a little wandering around the web for perhaps the best known example of chemical warfare, Zyklon-B and was reluctantly forced to admit that when you’re talking about war it’s much more convenient to pursue individuals than companies or states. I don’t tend to agree with this angle because it seems to me that the buck has to stop somewhere and that should be as high up the decision chain as possible and involve as many of the guilty as possible. You don’t have to pull a trigger to be responsible. You just have to point your finger.
In the case of Zyklon-B the buck ended up chiefly in the hands of Adolf Eichmann:
Later, when he actually visited the camps, Eichmann saw the results of his planning for the first time. “I did visit Auschwitz repeatedly. It had an unpleasant smell,” he wrote of his experiences there. Eichmann took notice of the inefficiency of the methods used to kill the prisoners. It required too much effort and the production of the carbon monoxide gas needed for the job was not cost effective. During the Nuremberg trial years later, the former commandant of Auschwitz said, “We did not come to a decision on the matter. Eichmann was going to inquire about a gas that would be easy to use and would not require any special installations and then report back to me.” Eichmann eventually implemented the use of a poison gas called Zyklon B. This action later became the basis for the first of 15 criminal charges against him at his trial.
I think the Vietnamese will be screwed here. US judges have tossed their case out of court (how could four million people not have a case?), exonerating the chemical companies of responsibility and saying that essentially they were only following orders.
So. Should they be pursuing the Kennedy and LBJ administrations? Or the upper echelons of the US military in Vietnam at the time?
The problem is that the debacle was enormous. The defoliant hasn’t been proven to be responsible, no, but in the absense of any other significant common factors…? It’s just like silicone breast implants- there’s no proven direct link between the silicone and the innumerable medical complications associated with them, but overwhelming indirect evidence seems pretty conclusive to me. That, for me, is beside the point.
Shouldn’t somebody be taking responsibility here? The government? The chemical companies? The military? Am I wrong?
Obviously the administration and the establishment as a whole would prefer this whole thing went away. Would it be fair to just shrug it all off? Write it all down as one of those unfortunate war things? “Well, it sucked but at least it’s over. And you guys shouldn’t have been fighting us anyway.” The message being sent is clear: Move on. Get over it.
If I were one of those Vietnamese whose children have been born deformed I don’t think I would be inclined to accept that attitude. I would want someone to recognize that I and four million others like me were treated with murderous disregard. Somebody should have to fess up for that.
Hell, if we had been destroyed by a tsunami you’d be gushing with support.
I don’t have the answer here. I personally think the US government should take responsibility for using a well-known highly toxic poison in widespread airborne delivery, even if it is forty-three years later. The institution survives its representatives, according to aboriginals all over North America. But who should take the hit? If international law lets corporations of the hook for war crimes and changing this policy will “cripple the President’s powers to direct U.S. armed forces in wartime” where does responsibility lie? That’s why we have the Geneva Conventions, which bluntly state:
Prohibited under the 1925 Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare.
It seems the Geneva Conventions have as much power as the United Nations. A convenient tool for the major players, to be used or ignored as needed. But then the whole idea of “civilized warfare” is pretty absurd anyway.
I just don’t have the answer. It’s events like this that make me wonder if humanity wouldn’t just rather get it all over & done with. Why have law? Let’s just leap into anarchy and let a bunch of thugs with clubs sort it out.
But back to the experiment I opened up with. Now that this is recorded where I can find it I want to see what happens when the tables are turned. What will happen when a foreign (and therefore weaker) power uses the same tactics against American individuals. Even four million of them.
Agreed, but… (there is always a but) ..perhaps it is an ‘Agreed AND’ instead. Anywho;
Your experiment is valid and one that came to my mind while reading that article, BUT this may only count if the usa (intentionally lowercase) is in a declared war on another country. Using Sarin gas in the Tokyo subway as an example, a small group of individuals was responsible not an entire country or army.
I see similar tactics or attacks most likely being used by a small group or relatively smaller faction unrelated to a country, similar to Al Qaeda. (wondering how many hits from dot g-o-v you will get now:)
As a matter of fact I think we have already seen the experiment through. A commander and chief (debatable at the best of times) has invaded another country on assumption that they may only possess such chemicals. No proof they have it, no proof they were going to use it, and certainly no proof they had used it in the past. The penalty handed down? A country being invaded and a government being overthrown.
You know, as opposed to Vietnam where there is well documented evidence from both sides, but ‘…they are not responsible…’
Almost as if the law was used to accomplish what war couldn’t. Nah…