Editing Agent Orange (section)

===Vietnamese victims class action lawsuit in U.S. courts===
On January 31, 2004, a [[victim's rights group]], the Vietnam Association for Victims of Agent Orange/dioxin (VAVA), filed a lawsuit in the [[United States District Court for the Eastern District of New York]] in [[Brooklyn]], against several U.S. companies for liability in causing personal injury, by developing, and producing the chemical, and claimed that the use of Agent Orange violated the [[Hague Convention of 1907|1907 Hague Convention on Land Warfare]], 1925 [[Geneva Protocol]], and the 1949 [[Geneva Conventions]]. Dow Chemical and Monsanto were the two largest producers of Agent Orange for the U.S. military and were named in the suit, along with the dozens of other companies (Diamond Shamrock, Uniroyal, Thompson Chemicals, Hercules, etc.). On March 10, 2005, Judge [[Jack B. Weinstein]] of the Eastern District – who had presided over the 1984 U.S. veterans class-action lawsuit – dismissed the lawsuit, ruling there was no legal basis for the plaintiffs' claims. He concluded Agent Orange was not considered a poison under [[international humanitarian law]] at the time of its use by the U.S.; the U.S. was not prohibited from using it as a herbicide; and the companies which produced the substance were not liable for the method of its use by the government.<ref>{{cite web|url=http://www.icrc.org/customary-ihl/eng/docs/v2_cou_us_rule76|title=United Kingdom of Great Britain and Northern Ireland: Practice Relating to Rule 76. Herbicides |website=Customary IHL Database |publisher=International Committee of the Red Cross|access-date=2020-02-01|archive-url=https://web.archive.org/web/20160307030911/https://www.icrc.org/customary-ihl/eng/docs/v2_cou_us_rule76|archive-date=2016-03-07|url-status=live}}</ref> In the dismissal statement issued by Weinstein, he wrote "The prohibition extended only to gases deployed for their asphyxiating or toxic effects on man, not to herbicides designed to affect plants that may have unintended harmful side-effects on people."<ref>{{Cite news|url=https://www.nytimes.com/2005/03/10/nyregion/agent-orange-case-for-millions-of-vietnamese-is-dismissed.html|title=Agent Orange Case for Millions of Vietnamese Is Dismissed|date=2005-03-10|work=The New York Times|access-date=2017-03-29|issn=0362-4331|archive-url=https://web.archive.org/web/20170420095400/http://www.nytimes.com/2005/03/10/nyregion/agent-orange-case-for-millions-of-vietnamese-is-dismissed.html|archive-date=2017-04-20|url-status=live}}</ref><ref>{{Cite court|url=http://www.vn-agentorange.org/10_03_05_agentorange.pdf |litigants=MDL No. 381 |date=2005 |court=E.D.N.Y. |opinion=No. 04-CV-400 |archive-url=https://web.archive.org/web/20191014195438/http://www.vn-agentorange.org/10_03_05_agentorange.pdf|archive-date=14 October 2019|url-status=live}}</ref>

{{blockquote|The [[U.S. Department of Defense|Department of Defense]]'s [[DARPA|Advanced Research Project Agency]]'s (ARPA) [[Project AGILE]] was instrumental in the United States' development of herbicides as a military weapon, an undertaking inspired by the British use of 2,4-D and 2,4,5-T to destroy jungle-grown crops and bushes during the Malayan emergency. The United States considered British precedent in deciding that the use of defoliants was a legally accepted tactic of war. On November 24, 1961, [[U.S. Secretary of State|Secretary of State]] [[Dean Rusk]] advised [[U.S. President|President]] [[John F. Kennedy]] that herbicide use in Vietnam would be lawful, saying that "[t]he use of defoliant does not violate any rule of international law concerning the conduct of chemical warfare and is an accepted tactic of war. Precedent has been established by the British during the emergency in Malaya in their use of helicopters for destroying crops by chemical spraying."<ref>{{cite book |title=The Literary Cold War, 1945 to Vietnam |url=https://archive.org/details/literarycoldwarv00piet |url-access=limited |first=Adam |last=Piette |date=May 25, 2009 |pages=[https://archive.org/details/literarycoldwarv00piet/page/n209 201]–202 |publisher=[[Edinburgh University Press]] |isbn=978-0-7486-3527-6}}</ref><ref>{{cite book |last=Rusk |first=Dean |url=https://history.state.gov/historicaldocuments/frus1961-63v01/d275 |section=Memorandum From the Secretary of State to the President |title=Foreign Relations of the United States, 1961–1963 |volume=I, Vietnam, 1961 |publisher=United States Department of State |date=November 24, 1961 |archive-url=https://web.archive.org/web/20181211050023/https://history.state.gov/historicaldocuments/frus1961-63v01/d275|archive-date=2018-12-11|url-status=live |oclc=220954388}}</ref>}}

Author and activist [[George Jackson (activist)|George Jackson]] had written previously that:<blockquote>If the Americans were guilty of war crimes for using Agent Orange in Vietnam, then the British would be also guilty of war crimes as well since they were the first nation to deploy the use of herbicides and defoliants in warfare and used them on a large scale throughout the Malayan Emergency. Not only was there no outcry by other states in response to the United Kingdom's use, but the U.S. viewed it as establishing a precedent for the use of herbicides and defoliants in [[jungle warfare]].</blockquote>The U.S. government was also not a party in the lawsuit because of [[sovereign immunity]], and the court ruled the chemical companies, as contractors of the U.S. government, shared the same immunity. The case was appealed and heard by the [[Second Circuit Court of Appeals]] in [[Manhattan]] on June 18, 2007. Three judges on the court upheld Weinstein's ruling to dismiss the case. They ruled that, though the herbicides contained a [[Polychlorinated dibenzodioxins|dioxin]] (a known poison), they were not intended to be used as a poison on humans. Therefore, they were not considered a [[chemical weapon]] and thus not a violation of international law. A further review of the case by the entire panel of judges of the Court of Appeals also confirmed this decision. The lawyers for the Vietnamese filed a petition to the [[U.S. Supreme Court]] to hear the case. On March 2, 2009, the Supreme Court denied [[certiorari]] and declined to reconsider the ruling of the Court of Appeals.<ref>{{cite court |url=https://www.asser.nl/upload/documents/DomCLIC/Docs/NLP/US/AgentOrange_AppealsJudgement_22-2-2008.pdf |archive-url=https://ghostarchive.org/archive/20221009/https://www.asser.nl/upload/documents/DomCLIC/Docs/NLP/US/AgentOrange_AppealsJudgement_22-2-2008.pdf |archive-date=2022-10-09 |url-status=live |litigants=Vietnam Association for Victims of Agent Orange/Dioxin v. Dow Chemical |date=2008 |court=2d Cir. |opinion=No. 05-1953-cv}}</ref><ref>{{cite web |url=https://www.supremecourt.gov/search.aspx?filename=/docketfiles/08-470.htm |title=Docket No. 08-470 |date=March 2, 2009 |publisher=Supreme Court of the United States |access-date=February 1, 2020 |archive-date=March 8, 2021 |archive-url=https://web.archive.org/web/20210308181023/https://www.supremecourt.gov/search.aspx?filename=%2Fdocketfiles%2F08-470.htm |url-status=live}}</ref>