APPENDIX 1
Selection from “Agent Orange” Product Liability Litigation: Memorandum, Order and Judgment
a. Alien Tort Statute (“ATS”), US Code U.S.C. Title 28, § 1350;
b. Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 note;
c. War Crimes Act, USC Title 18, § 2441 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 1925 Annex to the Hague Convention IV, Article 23, Respecting the Laws and Customs of War on Land, signed October 18, 1907;
d. 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Biological Methods of Warfare;
e. Article 23 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed October 18, 1907;
f. Geneva Convention relative to Protection of Civilian Persons in Time of War, signed at Geneva on August 12, 1949;
g. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Charter of the International Military Tribunal at Nuremberg, signed and entered into force on August 8, 1945;
h. United Nations Charter, signed at San Francisco on June 26, 1945 and entered into force on October 24, 1945;
i. United Nations General Assembly Resolution No. 2603-A (1969);
j. Customary international law;
k. Common law of the United States of America;
l. Laws of Vietnam;
m. Common law of the State of New York, including but not limited to product liability, assault and battery, negligence, recklessness, intentional infliction of emotional distress, negligent infliction of emotional distress, civil conspiracy, unjust enrichment and public nuisance.
Class certification is sought. In view of the dismissal of all individual claims, there is no reason to consider the motion for class certification.
a. War Crimes
It is contended that the acts of defendants adversely affecting plaintiffs constitute violations of the laws and customs of war, also known as war crimes, which prohibit: the employment of poison or poisoned weapons or other weapons calculated to cause superfluous injury or unnecessary suffering, the wanton destruction of cities, towns, villages or the national environment, or devastation not justified by military necessity; the use of biological or chemical agents of warfare, whether gaseous, liquid, or solid, employed because of their direct toxic effects on people, animals, or plants; and the poisoning of food and water supplies in the course of war. Leaders, organizers, facilitators, conspirators, and accomplices participating in the formulation and execution of these acts are claimed to be responsible for all acts performed by any person in the execution of this plan. The acts described allegedly constitute war crimes in violation of the ATS, TVPA, customary international law, the common law of the United States, the common law of the State of New York, the laws of Vietnam, and international treaties, agreements, conventions and resolutions.
b. Genocide
It is contended that the acts against plaintiffs constitute genocide, in violation of customary international law which prohibits the following acts committed with intent to destroy, in whole or in part, a national ethnic, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; or imposing measures intended to prevent births within the group. Leaders, organizers, facilitators, conspirators and accomplices participating in the formulation and execution of these acts are claimed to be responsible for all acts performed by any person in execution of such plan.
c. Crimes Against Humanity
It is contended that the acts against plaintiffs constitute crimes against humanity in violation of customary international law, which prohibits inhumane acts of a very serious nature such as willful killing and torture and other inhumane acts committed as part of a widespread or systematic attack against any civilian population or persecutions on political, racial or religious grounds. Leaders, organizers, facilitators, conspirators and accomplices participating in the formulation and execution of these acts are responsible for all acts performed by any person in execution of such plan.
d. Torture.
e. Assault and Battery.
f. International Infliction of Emotional Distress.
g. Negligent Infliction of Emotional Distress.
Defendants, it is claimed, carelessly and negligently inflicted emotional distress through wanton and reckless conduct in manufacturing and supplying herbicides contaminated with dioxin for use in herbicidal warfare. As a direct result of defendants’ wrong acts, it is contended, plaintiffs and plaintiffs’ immediate family members have suffered and will continue to suffer significant physical injury, pain and suffering and extreme and severe mental anguish and emotional distress. This conduct allegedly constituted the negligent infliction of emotional distress.
h. Strict Product Liability
The negligence of the defendants, their servants, employees and agents consisted, according to the complaint, in manufacturing and supplying the herbicides without making proper and sufficient tests to determine their dangers and contraindications, in that defendants knew, or in the exercise of reasonable diligence, should have known that the herbicides were unsafe and unfit for use by reason of the dangerous effects to human health and the environment, in negligently failing to adequately warn the public and the United States and RVN governments of the dangers and contraindications of the herbicides, in failing to properly inspect the herbicides, and in concealing the dangers and contraindications of the herbicides from the public and from the United States and RVN governments in order to profit from the manufacture and supply of the herbicides. It is contended that defendants are liable jointly and severally to the plaintiffs under the doctrine of strict product liability.
APPENDIX 2
Vietnamese Studies on Agent Orange/Dioxin
Ba Thinh, Hoang. A Hero of the Armed Forces who Met Uncle Ho Three Times and His Children and Grandchildren Affected by Agent Orange/Dioxin. Hanoi: Research Centre on Gender, Family and Environment in Development (CGFED), 2005.
———. “A Family with Three Generations Affected by Agent Orange/Dioxin.” Hanoi: CGFED, 2003.
Din Cau, Hoang. Environment and Health in Vietnam (30 years after the Operation Ranch Hand), Hanoi: Nghe An Publishing House, Centre on Studies and Dissemination of Encyclopedic Knowledge, 2003.
Dai, Le Can. Agent Orange in the War in Vietnam—Situation and Consequences. Hanoi: Red Cross, 1999.
Minh, Tu Binh, et al. “Chapter 11 Persistent Organic Pollutants in Vietnam: Levels, Patterns, Trends, and Human Health Implications.” Developments in Environmental Sciences 7 (2007): 515–555.
Ministry of Health. Summary Report of the Vietnam-US Symposium on the Impacts of Agent Orange/Dioxin on Human Health and Environment. Hanoi, 2002.
Ministry of Labour, Invalid and Social Affairs. Analysis of Children with Disabilities in Vietnam. Hanoi: UNICEF, 2004.
Sajor, Indai and Le Thi Nham Tuyet. “Agent Orange: Impact of Chemical Warfare on the Reproductive Rights of Women and Men in Vietnam.” Hanoi: CGFED, 2000.