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A federal judge dismissed a lawsuit Wednesday that accused American chemical companies of war crimes for supplying the U.S. military Agent Orange, a defoliant used during the Vietnam War. Eastern District of New York Judge Jack B. Weinstein, ruling in a 233-page decision, said the first-ever suit by Vietnamese plaintiffs — roughly 4 million of them — could not be sustained under any legal theory. “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,” he wrote in In re Agent Orange, 04-CV-400. William H. Goodman of Moore & Goodman, an attorney for the plaintiffs, did not return a call seeking comment. He told The Associated Press the case would be appealed. “The use of this chemical in Vietnam was a scandal from the very beginning and the failure of this court to redress these wrongs is a continuation of that scandal,” Goodman said. Scot Wheeler, a spokesman for Dow Chemical Company, commended Weinstein’s ruling. “We believe the defoliant saved lives by protecting allied forces from enemy ambush, and also that it did not create adverse health effects,” Wheeler said. “Issues regarding war-time activity during the Vietnam War should be resolved by the U.S. and Vietnam governments as a matter of policy, and not in the courts.” Dow and Monsanto Company were among more than a dozen chemical manufacturers named in the suit, which could have resulted in billions of dollars in damages to compensate alleged victims and repair environmental damage caused by the chemical. The plaintiffs alleged that exposure to Agent Orange and one of its key ingredients — the chemical dioxin — caused birth defects, miscarriages, cancer and other ailments. Supplying the U.S. military with the chemical was a war crime, they alleged. Chemical companies defended their actions, saying they were following government orders in a time of war. For decades they have contended that there is no proof Agent Orange causes health problems. The U.S. Department of Justice also weighed in on the year-old case, urging Weinstein to dismiss the suit under the government contractor defense, which shields manufacturers from actions taken under government order. The government argued that if the suit succeeded it could set a precedent for future lawsuits by a wide range of foreign enemies for alleged harms by the U.S. military, and also “expose defense contractors to potential liability for possibly unforeseen uses of the goods ordered by the American Armed Forces.” Weinstein said Wednesday that the plaintiffs could not prove that their ailments were tied to the chemical. “Proof of causal connection depends primarily upon substantial epidemiological and other scientific data, particularly since some four million Vietnamese are claimed to have been adversely affected,” he wrote. “Anecdotal evidence of the kind charged in the complaint … can not suffice to prove cause and effect.” Weinstein rejected the plaintiffs’ war-crime theory as well. GENEVA PROTOCOL The U.S. military ceased spraying Agent Orange before 1975, when President Gerald R. Ford came out against the use of herbicides, the judge noted. He said that declaration, along with the U.S. Senate’s 1975 ratification of a poison ban included in the 1925 Geneva Convention, did not retroactively apply to the spraying of Agent Orange. And even if the Geneva Protocol did apply, the judge said, Agent Orange, which he classified as a herbicide rather than a poison, would not have been prohibited. “The 1925 Geneva Protocol provision was designed to outlaw poison gases such as mustard gas used in World War I,” Weinstein wrote. “It cannot be interpreted to encompass the use of herbicides which were not then a known weapon and were far different in their purpose and effect. The gases outlawed in 1925 had an almost immediate disabling effect on those exposed and were intended to disable or kill human beings. In contrast, herbicides were designed to strip plants of leaves or kill them.” He added: “The reasons and techniques for modern mass killings are not in any way comparable to the reasons and techniques in the use of herbicides in Vietnam.” PLAINTIFFS’ BURDEN Weinstein disagreed with the broad interpretation of the government contractor defense posed by the U.S. government, saying it did not apply “to violations of human rights, norms of international law and related theories.” “The government’s view is not persuasive,” he wrote. “To establish liability, the plaintiffs would have to show that the usage was illegal under international law; the defendants knew how their product would be used; and, that with knowledge, they supplied the product, facilitating and becoming a party to the illegality. ‘Unfairness’ to government contractors is not a convincing ground for ignoring their corporate liability under international law since it would be necessary to show that the corporation was aware of the intended illegal use when it supplied its product.” In 1984, chemical companies, including Dow, agreed to establish a $180 million fund to cover thousands of Vietnam Veterans who alleged they were harmed by Agent Orange. The Veterans Administration has declared some diseases presumptively caused by Agent Orange for the purpose of paying out benefits. But the studies that back those determinations, Weinstein said, show only low probability of cause and effect, and would be of no use in court, where plaintiffs would have to prove that their injuries were more probable than not caused by the herbicide. Dow Chemical was represented by Rivkin Radler and Orrick, Herrington & Sutcliffe. Monsanto was represented by Seyfarth Shaw and Latham & Watkins.

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