© 2007 All Rights Reserved
Court of Appeals
3rd October 2006
The Honourable Judges of the
United States Court of Appeals for the Second Circuit
40 Centre Street
New York, New York 10007
USA
Ref: Vietnam Association for Victims of Agent Orange/Dioxin
Et al. V. Dow Chemical Co., et al,. Docket No 05-1953-cv
Your Honours,
I am neither a scientist, nor a man of medicine. I do not have any medical experience or knowledge at all but write to you as a person who has travelled to Vietnam on many occasions, and visited many of its provinces. It is because of my visits and what I have seen that I write and ask to make a submission to the Court in favour of the plaintiffs in the appeal before you.
One of the weapons used by American forces in the war on Vietnam was chemicals. It has been established from research carried out by a team from Columbia University led by Jeanne Mager Stellman and Steven D. Stellman - published in Nature Magazine of April 2003 – of the logbooks of the pilots that 82 million litres of chemicals were sprayed over a vast area of South Vietnam. Many scientists from a number of countries have also carried out research on the effects of the use of these chemicals.
However, I wish to draw the attention of the Court to the visits I have made to Vietnam, the first in 1989, and each year since. My travels within the country have taken me to many of the provinces north, south, east and west. In the seventeen years I have been able to meet and speak to many hundreds of people, young and elderly, suffering from various illnesses and disabilities as a result of the chemicals. I have met the people affected at clinics, in schools, hospitals and in their homes. In many cases it has not been easy for me to see the terrible disabilities suffered by young adults, teenagers, and in particular children.
You will know that the War on Vietnam ended in 1975, but the use of the chemicals that included Agent Orange/Dioxin over a period from 1961 – 1972 has affected millions, many thousands of whom were born long after the war ended.
To see, as I have, seen a child of six years born with no eyes, slowly making his way around a room by touch. A young girl of eight, her body twisted by Spina Bifida, sitting at her school desk writing her times table. Youngsters minus limbs, be they an arm or a leg, for some minus either legs, or both arms. Hundreds of thousands died in the womb of their mothers, some shortly after their birth. These too I have seen in the special room at Tu Du Hospital in Ho Chi Minh City.
Born in 1930 I know of no war in my lifetime that has left such a legacy to those born after its end. International scientists have carried out tests, have investigated the soil and forests on which the chemical were used. You will no doubt have seen the evidence presented to you from people on whom the chemical was sprayed, and are ill or disabled, or from young adults whose parents served in the Vietnamese forces during the war and were born with disabilities.
I should point out that due to the nature and severity of their illnesses and/or disabilities many of the Vietnamese affected by the chemicals would not able to travel even within their own town, city, country, let alone travel to New York to present their case before you. Documentary films have been produced showing many of these tragic victims. I would hope that the Court before coming to its decision would have seen these.
Your Honours, you will be aware that members of the U.S. forces who served in Vietnam have also been affected by the same illnesses and disabilities transmitted to their children as have occurred on the Vietnamese. Further, in a lawsuit brought by these veterans in 1984 against some of the same companies before you in this appeal, you will know that it was settled out of court for a sum of $184m.
Veterans from Australia and New Zealand are suffering from the effects of the chemicals. In a settlement announced by a high Court in South Korea, the chemical companies that included Monsanto, were told to pay compensation.
At an international conference on Agent Orange held in Hanoi earlier this year, I was pleased to meet a number of veterans from Australia, Korea, New Zealand, Vietnam and the United States. I listened with great interest to their speeches recalling their time served in Vietnam and the part that some played in spraying the chemicals. It was very moving to hear an American speak of the death of his young son in his arms when his life support was turned off. His death was undoubtedly due to his father’s experiences in Vietnam.
His story can be repeated many thousands of times by the Vietnamese who went through the same tragic experience and who, today, are witnessing their children suffering from the consequences of chemicals used over thirty years ago.
The youngsters I see in my visits are those of the third generation, how many more generations will be born remains to be seen.
In Mid-December I will be in Ho Chi Minh City having been invited to the wedding of Nguyen Duc - a victim along with his brother Viet of the chemical - both were born conjoined in 1981 ten years after the spraying ended. They were separated in 1988 and I first saw them in 1989. Viet unfortunately remains very ill and requires constant medical attention.
The best wedding present that Duc and his fiancée Thanh Tuyen can receive is for the court to rule in favour of the Vietnamese victims.
Let Justice be done.
Yours sincerely
Len Aldis
Secretary
Britain-Vietnam Friendship Society
On Saturday 13th October 2006, I received a reply – see below - along with my letter, from the United States Court of Appeals for the Second Circuit, and signed by the Clerk of Court Roseann B. MacKechnie.
United States Court of Appeals
For the Second Circuit
Thurgood Marshall United States Courthouse
40 Centre Street
New York, New York 10007
212 857 8500
Dennis Jacobs
Chief Judge
Roseann B. Mackechnie
Clerk of Court
October 13, 2006
Mr Len Aldis
Flat 2
26 Tomlins Grove
London E3 4NX
Re: Your letter of October 3, 2006
Dear Mr Aldis:
Your letter, referenced above, addressed to “The Honourable Judges” of this Court, has been forwarded to this office for response.
Our records indicate you have no matter pending before this Court. Because you are not a party to the appeal in Vietnam Association for Victims of Agent Orange/Dioxin v. Dow Chemical Company, Docket No 05-1953-cv, I cannot forward your letter to the judges who will decide this case.
Moreover, because this Court can only review testimony and exhibits that are part of the record from the district court. I am not authorised to provide the panel with documents that are not part of the record.
Thank you for writing.
Very truly yours.
Roseann B. MacKechnie
The Lawsuit
After wide consultation it was decided that a lawsuit be undertaken against the American Chemical Companies that had manufactured and supplied the chemicals that included Agent Orange to the American forces for use in the Vietnam War. In January 2004 it was filed in the U.S. Eastern District Court of New York
After a number of delays, the Appeal by US veterans and Vietnamese, all victims of the chemicals manufactured by US Chemical companies headed by Monsanto and Dow Chemicals, was finally heard before Judge Peter W. Hall, Robert D. Sack and Roger J. Miner in the United States Court of Appeals for the Second Circuit, New York, New York 10007, On 18th June 2007.
Lawyers for 16 US veterans began their arguments followed by lawyers of the chemical companies. In the afternoon session, lawyers for the Vietnamese made their case, opposed by lawyers for the chemical companies. As in the hearing in the lower court, a lawyer for the US Justice Dept spoke. In the main, her argument was that the court does not have the authority to pass judgement on a military operation carried out by the President and funded by Congress. She also argued that Agent Orange was not a poison, and contained only a small amount of dioxin, and that the international law of proportionally (use of excessive force and targeting of civilians in war) does not lend itself to lawsuits in US courts because it is too subjective, and requires a judgement call.
Jonathan Moore, a lawyer for the plaintiffs, said the companies knew the herbicide containing dioxin was harmful but did nothing. “We are now seeing, years later, the fruit of that terrible poisonous product,” he said.
The judges were unmoved by cases dating from World War II, in which makers of Zyklon B, used in Nazi death camps, were convicted of crimes. “It’s a different circumstance here, is it not?” said judge Robert Sack. “Is poison designed to kill or hurt?”
Seth Waxman, (a former US Attorney General) arguing for the chemical companies, said there was a lack of legal precedent for punishing those who used poisons during warfare and said US battlefield decisions could be harmed. “This does affect our ongoing diplomacy,” he said, citing the use of depleted uranium shells by US forces in Iraq.
An American supporter of the victims and a Vietnam War protester said it sickens me. “I am amazed that an American citizen can get up in court and argue there is no reason why we should give compensation to the Vietnamese people and to our veterans. How can they go home and live with their conscience?
The Vietnamese lawsuit contends that chemical companies including Dow Chemical Co. and Monsanto Co. should be held responsible because they were aware that dioxin was deadly and was not needed for defoliation, but failed to remove it from Agent Orange because of the expense.
The U.S. government was not sued because it is protected by the doctrine of sovereign immunity. The chemical companies contend they were fulfilling their military contracts according to specifications and that there is no proof that Agent Orange caused the illnesses.
A position statement by Dow Chemical says the U.S. government and the Vietnamese government are responsible for military acts in Vietnam and the use of Agent Orange as a defoliant.
Any future issues involving Agent Orange should be the responsibility of the respective governments as a matter of political and social policy.
In the lower court ruling (the purpose of this 2007 appeal), U.S. District Judge Jack Weinstein of Brooklyn, N.Y., said VAVA was entitled to try to sue under international law, but said that Agent Orange was intended to be an herbicide, not a poison, and that its use did not qualify as chemical warfare under international law in effect at the time.
Veterans for Peace filed a friend-of-the-court brief supporting VAVA in the appeal, and stated the group will support the Vietnamese victims of Agent Orange and other chemical defoliants all the way to the Supreme Court if necessary
Lawyers arguing on behalf of the chemical companies say Agent Orange is an herbicide, and its use did not violate international law because it is not a poison specifically designed to harm or kill people. The attorneys also said that a court ruling in this case could infringe on battlefield decisions made by the U.S. military.
Dow Chemical told Voice Of America that 40 years of research has not
produced concrete evidence that Agent Orange causes illness. The company also says it is not responsible for the manner in which its products are used by the military.
IT IS URGENT THAT WE KEEP THE PRESSURE ON
The judges ruling on the appeal is expected to take some months, If they rule in favour of the Vietnamese it will mean that the case will go to trial before a jury. This was the objective of the original lawsuit.
However, it is also expected that Monsanto, Dow Chemicals etc will appeal, as they have in other lawsuits. South Korean veterans won their lawsuit but both Monsanto and Dow have appealed to the Korean Supreme Court. That case continues.
Meanwhile, while waiting for justice, many victims of Agent Orange will die. Thousands have already died in the 36 years since the spraying stopped in 1971. Many thousands live with horrific disabilities.
Along with US veterans at the Court hearing were four Vietnamese each affected by Agent Orange; Ms Nguyen Thi Hong, Mr Nguyen Van Quy, Mr Vo Thanh Hai and Mr Nguyen Muoi, all victims of Agent Orange. Mr Muoi aged 23 years is a son of a veteran and suffers from Spina Bifida.
We regret to inform our readers that shortly after they returned to Vietnam from the United States the death occurred of Mr Nguyen Van Quy on Saturday 7th July. On Friday 20th July Ms Nguyen Thi Hong also passed away.
These were two of the many victims who have died from Agent Orange. All have been denied Justice by the actions of the US Government and the Chemical companies led by Monsanto and Dow Chemicals in their refusal to accept their responsibility for the manufacture and use of Agent Orange in Vietnam.
As a tribute to Ms Nguyen Thi Hong and Mr Nguyen Van Quy, we have arranged for twenty trees to be planted in their memory in the BVFS Forest of Friendship in Thanh Hoa. Other supporters have also arranged to plant further trees in their memory.
A PLEA TO THE JUDGES OF THE COURT OF APPEAL, NEW YORK.
Judge Peter W. Hall; Judge Roger J. Miner: Judge Robert D. Sack
Sirs,
On Monday 18th June of this year you presided over the appeal from US Veterans and Vietnamese against the ruling by Judge Jack Weinstein. The four Vietnamese present in the court were representing over three million of their countrymen; women and children affected by the chemicals used by US forces in the Vietnam War.
One, a 24-year old son of a veteran, and like his companions is suffering from the effects of the chemicals, in particular Agent Orange. Perhaps they caught your eye as you listened to the arguments of the lawyers for the chemical companies. What were your thoughts when the argument was put that the companies were “fulfilling their military contracts according to specifications, and that there is no proof that Agent Orange caused the illnesses”?
In my earlier letter to you that the Clerk to the Court refused to accept but is on my website: www.lenaldis.co.uk, I suggested that before you decide on your ruling you might consider making a visit to Vietnam and see for yourself some of the people affected by Agent Orange. I gave as a reason for that suggestion that many of the victims are not able to travel beyond their homes, let alone from Vietnam to New York – it is a tiring journey for a fit person, more so for a person ill with Agent Orange.
Sadly, what I feared has occurred, two of the four Vietnamese that were present in your court, died shortly after returning home. Both will not hear or read your ruling whenever it is given. Both, along with many thousands who have died from the chemicals, have been denied the justice they so richly deserved and campaigned for. Death - and the failure of successive US Governments and the chemicals companies such as Monsanto, Dow Chemicals to accept their responsibility for Agent Orange - cruelly snatched it from them.
In addition to the US veterans, there are over three million Vietnamese waiting for your ruling. While I cannot ask you to rush in your judgement, I would plead with you to consider the many years that have already elapsed - thirty-six years - since the spraying of Agent Orange on South Vietnam ended.
For many thousands, your ruling will come too late, as we witnessed in the tragic deaths of Ms Hong and Mr Quy. But what of the children of the third generation who’s parents, and grandparents were directly affected by Agent Orange and are today suffering from illnesses and severe disabilities. These are the innocents born many years after the spraying stopped in 1971 and the war that ended in 1975.
How many of them will die before justice is finally won? The answer rests with you and your ruling.
I sincerely hope that your decision will be swift and above all JUST.
Yours sincerely
Len Aldis. Secretary
Britain-Vietnam Friendship Society
London UK
PS. As my previous letter was not placed before you, I have no choice but to make this letter public. This is no disrespect to you.
The military used Agent Orange to clear the surrounding areas of the American and allied military bases in South Vietnam and the foliage by the roadsides. Later it was used to destroy forests to expose the Vietnamese forces opposed to the Americans and their allies. It was also used to destroy the crops that the U.S. felt would be useful to the forces opposing them.
