Attempt to Hold America Accountable for Agent Orange Fails

I had high hopes for the French case to hold the U.S. accountable for dropping Agent Orange in Vietnam. This was for two reasons. First is that the U.S. is morally culpable for the crimes against humanity it committed in Vietnam that the people who live there still have to deal with today. Second, it’s the kind of thing I have advocated for over the last decade–the need for international regulation and enforcement to tame both corporate and government malfeasance. If we can hold the U.S. accountable for what it did in Vietnam in 1970, we can hold it accountable for what its companies’ supply chains do there in 2021. Here’s a bit on the case from a few days ago:

Almost six decades after the U.S. military began dropping a toxic herbicide known as Agent Orange in the Vietnam War, a French courtroom in a Parisian suburb has become the unlikely setting for a faceoff between a woman who says she was a victim and some of the world’s largest chemical and pharmaceutical corporations that supplied the substance.

The landmark case has pitched Tran To Nga, a 79-year-old, against 14 companies. A ruling is expected on Monday.

If the court in Évry sides with the companies, including American multinational Dow, it would crush hopes for what activists have seen as a “historic trial” and a unique chance for accountability. But if the court rules in Tran’s favor, she would be the first Vietnamese civilian to win such a case.

“What I want from the companies that produced Agent Orange is that they have the courage to recognize their crimes and the courage to fix what they caused,” Tran said in an interview, sitting between two desks in her small living room.

On the tidy desk to her right, carefully filed documents and correspondences testified to more than half a decade of legal proceedings.

The desk to her left was strewn with boxes of pills and various medications.

Tran has numerous conditions that in medical research have been linked to the long-term effects of Agent Orange, including Type 2 diabetes and cancers. Among her three daughters born after her exposure to Agent Orange, one died shortly after birth due to a heart defect and the surviving two have been diagnosed with blood and skin conditions.

Tran and her lawyers say the only explanation for those conditions is her exposure, when she was directly hit by chemicals dropped from an American plane. Tran says at the time she was a journalist aligned with the communist Viet Cong forces, one of the U.S. military’s key foes in the region during the war. She was later imprisoned by the U.S.-aligned South Vietnamese government.

Alas, the French court punted:

But the court argued that it does not have jurisdiction, largely because the accusations are linked to wartime actions by the U.S. government, according to Agence France-Presse. This had been a key argument of the implicated companies, including American multinational Dow.

In a statement on Monday, German company Bayer — which acquired Agent Orange producer Monsanto — said it is “well-established” that wartime contractors, “operating at the behest of the U.S. government, are not responsible for the alleged damage claims associated with the government’s use of such product during wartime.”

Tran’s lawyers said the court decision is based on an “obsolete definition of the principle of immunity from jurisdiction.”

They argued that the companies that supplied Agent Orange to the U.S. government were aware of the herbicide’s toxicity and acted without coercion. Tran’s lawyers on Monday also called for full access to the communications between the U.S. government and the companies at the time.

The U.S. military deployed or tested Agent Orange and similar chemicals in Vietnam, Cambodia, Thailand, the Korean demilitarized zone and Laos between the early 1960s and 1971. The primary aim in conflict zones was to destroy crops and to defoliate forests used by enemy fighters.

But the substances also entered the food chain, and parents passed the toxins on to their children, according to researchers. Tran said she was hit by the chemicals when they were dropped from a U.S. plane.

She developed numerous conditions that have been linked to Agent Orange, including Type 2 diabetes. After Tran’s exposure to the herbicide, one of her daughters died of a heart defect, while her two surviving daughters were diagnosed with skin and blood conditions.

The case was tried in France because Tran became a French citizen after moving here in the early 1990s. French nationals can sue foreign entities even if the crime was committed abroad.

In their statement on Monday, Tran’s lawyers said they hope she “will have sufficient strength, given the conditions she suffers from, to be able to carry out her fight until the end.”

It’s not hard to see why courts would choose to ignore the obvious connections between American corporations and the American government–allowing such a case to go forward would open a huge can of worms that would allow for the prosecution of all sorts of crimes done in the corporate-political alliance. And yet this has to be, in my view, the single most important priority in progressive foreign policy. Right now, we exist in a world where companies have been able to shed national laws while we regular people are constrained by national law. Since you aren’t going to put globalization back in the bag, the only way out of this mess is to create international law that you and I can access too. That’s going to take a whole bag of tricks, including finding courts willing to take these issues on. So this is a big loss, but let’s keep up the pressure, not only for the people of Vietnam who have lived their lives with the aftermath of American chemical warfare on their nation but for the people of Vietnam today who suffer through unsafe working conditions.