The devastating effects of Agent Orange are a blemish on the
U.S. national record and an obstacle impeding true reconciliation between the
U.S. government and both Vietnamese and American victims of the toxic herbicide
(for information about Agent Orange and its effects, see �Part 1: What
Was Done�). For this reason, issues of international law, justice, and
corporate and governmental responsibility must be addressed clearly and
directly. Those who are currently suffering from the poisonous effects of Agent
Orange, though, have found that the struggle for justice can be as toxic.
�I died in Vietnam, but I didn�t even know it,� announced
veteran helicopter crew chief Paul Reutershan when he appeared on the �Today�
show in the spring of 1978, according to Fred Wilcox in Waiting
for an Army to Die. Reutershan, a helicopter crew chief and
self-described �health nut� who did not smoke or drink, died at the age of 28
of virulent abdominal cancer. However, before he died, he contacted a personal
injury lawyer and launched the first lawsuit against the chemical manufacturers
that produced Agent Orange, a lawsuit that would grow into some of the largest
and most important litigation of the time.
Awareness of Agent Orange spread rapidly due to this lawsuit
and the data collected by Maude DeVictor, an employee in the Benefits Division
of the VA�s Chicago office. DeVictor began keeping track of chemical-related
complaints, despite the orders of her supervisor to stop, and the data she
collected became the source for the 1978 CBS documentary, �Agent Orange, the Deadly Fog.� By May of 1979, a class action suit
filed by the lawyer Victor Yannacone against seven chemical manufacturers included
4,000 claims and continued to grow.
The case would drag on for six tumultuous and costly years,
concluding in 1984 with what was the largest tort settlement in history.
According to Peter Schuck in Agent
Orange on Trial, Dow Chemical, Monsanto, and five other chemical
manufacturers paid $180 million to over 50,000 veterans, but still denied
liability. Few of the plaintiffs ever received more than
$5,000. While this was an important case with an impressive cash
settlement, it did little to satisfy the afflicted veterans or to address the
politics of responsibility. The corporations were never found guilty nor did
they admit wrongdoing. Further, due to the Federal Tort Claims Act and the Feres/Stencel
immunity doctrine, the veterans were unable to file a lawsuit against the
federal government or the military. To this day, the political issues of Agent
Orange have been mishandled, evaded, and ignored.
While achieving a modicum of justice took many years for
American veterans, Vietnamese victims of Agent Orange have less hope of seeing
any form of justice in the near future. In 2004, several of these victims, led
by the Vietnam Association for Victims of
Agent Orange (VAVA), filed a federal lawsuit against 37 U.S. defoliant producers
that created and distributed Agent Orange. The case was dismissed
on March 10, 2005, because of a variety of factors that led the judge to
conclude in his 233-page decision that no domestic or international law had
been violated. The lawsuit sought �billions of dollars
in damages and environmental cleanup, on behalf of . . . four million
Vietnamese victims. . . .� The ruling was met with great disappointment from
Vietnamese citizens, the Vietnamese government, and American veterans who
helped the Vietnamese victims -- some of whom were formerly Vietcong -- file
the lawsuit.
Of the ruling, Nguyen Trong Nhan, the vice president of
VAVA, says, �We
are disappointed . . . [Judge] Weinstein has turned a blind eye before the
obvious truth. . . . We just want justice, nothing more.� One problem that
plagued the plaintiffs is that of causation -- of proving
that Agent Orange directly led to their health problems -- an obstacle
exacerbated by the lack of funding with which research could be conducted among
other scientific factors.
Perhaps even more crucial to the outcome of the case was the
fact that �the
court had come under heavy lobbying from the US Justice Department to rule
against the plaintiffs, because of Washington�s fears of the legal precedent it
would set in other countries ravaged by US military interventions.� John
McAuliff of the Fund for Reconciliation and
Development (FRD), which supported the lawsuit, echoed this unpleasant
reality when he said, �Judge Weinstein has
made it easier for our country to continue to evade moral responsibility
for the consequences of its actions. . . . We constantly hold other countries
responsible, but never ourselves.�
Though this ruling is a setback for the Agent Orange
victims, it is not an unexpected one. The magnitude of this unprecedented
situation and its international scope make it incompatible with the
technicalities and minutiae of the American justice system. No court has the
precedent or the jurisdiction to adequately seek justice on such a large and
multi-dimensional scale. The call for accountability must be made to the
government that launched the war in Vietnam and left a deadly, toxic legacy.
While all calls for governmental accountability or
reparations entail at least a degree of symbolic justice, the situation in
Vietnam is unique in that it also demands relatively clear-cut and practical
action. The lawsuit brings at least some attention to the fact that there are
still heavily contaminated �hot-spots� in Vietnam afflicting new victims.
The spraying of Agent Orange covered a vast amount of space
and cleaning up only three of the most contaminated �hotspots� will cost as
much as $60 million. Only recently has the U.S. pledged to contribute to this
cause, in the amount
of just $300,000. Pledges from the U.S. to aid these efforts with
scientific research have been common, but actual results have been few. In the
past several years, Congress has charged the National Academy of Sciences
with studying the health effects of Agent Orange on the Vietnamese population,
but this underfinanced research is a low priority and �at
least two joint research efforts have fallen through,� one as recently as
February of 2005. Almost all of the decontamination efforts have come from
non-profit organizations like the Ford
Foundation and international bodies like the United
Nations Development Programme.
The suffering that continues because of American policy in
Vietnam and the lack of assistance from the U.S. or admission of responsibility
emphasizes the federal government�s preference of global power and hegemony
over international law, reconciliation, and moral concerns. The lawsuit on
behalf of Vietnamese victims transcends mere legal matters; as VAVA President
Dang Vu Hiep says, �The suit is
not only for the life of Vietnamese Agent Orange victims, but also for the
legitimate rights of all victims in many other countries, including the United
States . . . We believe that conscience and justice are still respected in this
earth.� The American people tend to agree with him.
According
to a Zogby Poll from
2004, 79.1 percent of Americans agree that the chemical companies should
have had to pay compensation to American veterans who were exposed to Agent
Orange and 51.3 percent agree that Vietnamese victims should receive U.S.
compensation. From a moral standpoint, 64.4 percent agree that the U.S.
government �has a moral responsibility to compensate U.S. servicemen and
Vietnamese civilians who were affected by Agent Orange.� People 18 to 29 years
old were the demographic most likely to endorse compensation for the victims,
demonstrating a commitment of the younger generations to reconciliation and
foreign policy conducted within a framework of morality.
While the Justice Department heavily supported the chemical
companies in court against the Vietnamese victims, claiming that a ruling
against the firms �could
cripple the president�s power to direct the military," many American
Vietnam War veterans see reparations as indispensable to achieving reconciliation,
both on a personal level and an international one. American veteran Chuck
Searcy has been in Vietnam for 10 years cleaning up �unexploded ordnance� from
what was the demilitarized zone as part of Project Renew. Searcy
says, �It wasn�t so much
about undoing what had been done. That was impossible. But we could build
on the ashes and the bones of the war -- build on the hopes for the future,
better understanding and reconciliation.� Despite the U.S. government�s
occasional rhetoric about human rights and reconciliation, these wounds are
likely to remain open, as most paths to healing diverge in some way with
American might and dominance.
The Vietnam War, in conjunction with U.S. military
aggression elsewhere in the world in the Cold War and post-Cold War era,
demonstrates that American interests and priorities are more aligned with
military power and economic dominance than they are with international law or
human rights. In response to the use of Agent Orange, resolutions were
introduced in the United Nations as early as 1966 �charging the United States
with violations of the 1925 Geneva Protocol limiting the use of chemical and
biological weapons,� according to Schuck. Perhaps more than any other nation,
the United States is rigidly averse to having its course of military action
influenced by international norms. It is for this reason that the U.S. did not sign
the 1980 Convention
on Conventional Weapons, which bans the use of incendiary weapons against
civilians, and that the U.S. is �in near total isolation in [opposing] the
global effort to ban [land] mines,� according to Human
Rights Watch. The unwillingness of the U.S. to sincerely endorse
international law or embrace an international justice system is well conveyed
by former Ambassador-at-Large for War Crimes Issues David Scheffer, who says, �There is a reality,
and the reality is that the United States is a global military power and
presence. Other countries are not. We are.�
The failure of domestic courts to provide justice or
adequate compensation to victims of Agent Orange reinforces the need for
political solutions that are grounded in international norms. The often amoral
interplay between global �justice� and global �power� makes it necessary for
the international community and the citizens of the U.S. to insist on the
protection of human rights and fundamental respect for human life. In her book Between
Vengeance and Forgiveness, Martha Minow asserts, �Forever after [the Vietnam War era], efforts to
create tribunals for war crimes would raise questions from many inside the
United States about its own accountability to such tribunals.� For nations with
power and resources, nationalism and unrestrained decision-making tend to
supersede justice.
The best that can emerge from trials like those regarding
Agent Orange are revivals of discourse surrounding U.S. actions in Vietnam and
empowered movements that call for dedication to human rights and international
law. Yet, in situations like this, trials alone have very limited potential for
effecting positive and permanent change. It is the U.S. government that must,
in addition to compensating victims and helping to detoxify Vietnam, face the past
by publicly committing to the prevention of such abuses in the future.
One of the most important ways to do this is to rethink
opposition to a standing International Criminal Court, which, if given
sufficient powers of prosecution, would enable the punishment of war criminals
fairly and efficiently and aid the cause of reconciliation. Though U.S.
objections to this court -- particularly from the current Bush administration
and former Ambassador to the United Nations John Bolton -- center around a fear
of a new judicial body threatening American sovereignty and eroding the
Constitution, these concerns are largely unfounded unless international law is
breached. The International Criminal Court operates under the principle of complementarity,
meaning that it only functions if a state is charged with an international
crime and fails to investigate and, if warranted, prosecute. Even abominations
of justice -- like the show
trial of William Calley (but not of any senior officers) for ordering the
murder of approximately 500 civilians in the hamlet of Song My in 1968, which
resulted in a life sentence that soon became three days in prison -- would be
considered �investigation� and �prosecution.�
Instead of a commitment to justice in Vietnam, the United
States has sought �reconciliation� through the gospel of international
commerce. After the U.S. and Vietnam entered into a bilateral trade agreement
in 2000, President
Clinton delivered a speech extolling the act�s significance: �This is
another historic step in the process of . . . reconciliation and healing
between our nations. Improvements in the relationship . . . have depended from
the beginning upon progress in determining the fate of Americans who did not
return from the war . . . Since 1993, we have undertaken 39 joint recovery
operations in Vietnam, and [40 are] underway as we speak . . . And we, too,
have sought to help Vietnam in its own search for answers. . . .�
Exactly what answers have been given to the Vietnamese is
unclear. During Clinton�s visit to Hanoi, Vietnamese President Tran Duc Long
asked the U.S. �to acknowledge
its responsibility to de-mine, detoxify former military bases and provide
assistance to Agent Orange victims.� No answer was given. Clearly, settling the
American conscience about MIAs in Vietnam outweighs the lingering poison that
contaminates swaths of the nation.
Not only are diplomatic and economic relations inadequate in
achieving reconciliation, but they have the potential of adding further
injustice by distorting the historical record. According to the Asia Times, �The
Vietnamese government, which for decades publicly documented the impact of
Agent Orange on civilian populations at its War Crimes Museum in Hanoi,
recently toned down the exhibition in line with a warming trend in relations
with Washington.� With no justice, accountability, or compensation over the
Agent Orange assaults, truth and historical memory are all the people of
Vietnam have. Documentation of Agent Orange�s tragic effects, especially on
generation after generation of children, must be maintained and made publicly
available in order for the gravity and criminality of such foreign policy
decisions to be understood.
The use of Agent Orange in Vietnam is undoubtedly one of the
most shameful foreign policy disasters in American history and one for which
justice is unlikely to be achieved. Agent Orange, though unique in the
continuous harm that it causes, was only one aspect of a larger catastrophe.
Colonel David Hackworth, a decorated veteran, says �Vietnam
was an atrocity from the get-go. There were hundreds of My Lais. You got your card punched by the
number of bodies you counted.�
The United States has failed to repair the damage it caused,
hold war criminals accountable, provide compensation to victims, and make a
commitment to human rights and international law to prevent the recurrence of
the atrocities in Vietnam. As the woeful past is rationalized, distorted, and
denied, the victims of Agent Orange become not just casualties of war, but
casualties of memory and injustice -- the Vietnam War�s most toxic legacy.
Aaron
Sussman is the co-founder and Executive Editor of Incite Magazine; he
can be contacted at Aaron@InciteMagazine.org. For more
of Sussman's work, visit www.ACrowdedFire.com.
What you can do about
it:
Get involved in
relief efforts in Vietnam
Support Project RENEW
Help out �Voices for Agent Orange
Victims� by visiting this page or send an e-mail to jeschaff@owu.edu.
�Justice for Victims
of Agent Orange� -- Sign the petition!
Support the Hue Medical College Office of Genetic
Counseling and Diabled Children, which �provides vital assistance to
sick and disabled children and their families in Central Vietnam and the
Central Highlands.�
Support the Vietnam Friendship
Village Project
Support the The Danang/Quang Nam
Fund. E-mail Executive Director Kenneth Herrmann at kherrman@rochester.rr.com
to learn more.
Support the Vietnam Agent Orange
Relief and Responsibility Campaign
Support the Vietnam Red Cross
Society
Support American
Veterans exposed to Agent Orange
Study on the health
effects of Agent Orange on Vietnam Veterans, conducted by the Institute of
Medicine of the National Academies
Visit the Agent
Orange �Quilt of Tears� webpage from the Agent Orange Victims and Widows
Support Network
�Government
Has Obligation to Agent Orange Victims,� from the American Legion
Visit the Vietnam
Veterans Memorial Fund
Learn more about
Agent Orange and its effects
The VA�s webpage on Agent Orange
Information about birth defects --
search for �Agent Orange�
Study
of �Operation Ranch Hand,� from a Congressional hearing
The Fund for Reconciliation and
Development�s Agent Orange Page
Video Map of the
herbicide spraying in Vietnam, created by Dr. Jeanne Stellman of
Columbia University
Dioxin Research at the
National Institute of Environmental Health Sciences
Images of the
effects of Agent Orange in
Vietnam, from the incredible book Agent Orange: Collateral Damage by photojournalist Philip Jones
Griffiths
More images of
the effects of Agent Orange in Vietnam
History
of Operation Ranch Hand
Learn more about the
Vietnamese Victims� lawsuit against Agent Orange manufacturers
VAVA Website (in Vietnamese)
Open Letter to the
American People from VAVA
Information on the Vietnamese
victims� 2004 lawsuit
Court Documents from the
lawsuit
Learn more about the
International Criminal Court
International Criminal Court website
Q&A About the ICC, from Human Rights Watch
John
Bolton�s view of the ICC
Call for the support of the ICC
Take Action to call for support
of the ICC and international law, from Human Rights Watch
More ways to take action
to support the ICC, from Amnesty International
Support the Coalition for an International
Criminal Court
USA for the International Criminal Court