AGENT ORANGE PRODUCT LIABILITY LITIGATION: MEMORANDUM

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OF LAW IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS ALL

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CLAIMS FOR FAILURE TO STATE A CLAIM UNDER THE LAW OF

NATIONS

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CONSTANTINE P. KOKKORIS

2005

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TABLE OF CONTENTS

I. INTRODUCTION. 5

A. Preliminary Statement. 5

B. Overview of this Brief 8

II. REVIEW OF THE LAW OF NATIONS WITH RESPECT TO CHEMICAL AND BIOLOGICAL

WARFARE 10

A. FROM ANCIENT TIMES THROUGH THE NINETEENTH CENTURY. 10

1. Early Examples of the Use of Poison in War . 10

2. Early Attempts to Proscribe Poison and Wanton Devastation 13

3. Grotius and the Emergence of the Modern Conception of the Law of Nations 16

4. Early Trials of War Crimes 20

B. CODIFICATION OF THE LAWS OF WAR. 22

1. Conventional Versus Customary International Law. 22

2. Predecessor Instruments to the Hague Regulations of 1907: . 27

3. Interpretation of Texts Concerning the Customary Prohibition of Poison 3

4. The Hague Conventions of 1899 and 1907 36

5. Article 23 of the Hague Regulations. 40

6. Other Provisions of the Hague Conventions 41

7. Continuing Applicability of Hague Article 23 to New Weapons . 43

C. WORLD WAR I AND ITS AFTERMATH 47

1. Use of Chemical Weapons. 47

2. Attempts to Prosecute for War Crimes After World War I 53

3. The Treaty of Versailles and Prohibition of Chemical Weapons 57

4. Interpretation of Versailles Treaty's Ban on Chemical Weapons 59

5. The Washington Conference and the Prohibition of Chemical Weapons 60

6. The 1925 Geneva Protocol and the Prohibition of Chemical and Biological Warfare 65

7. Interpretation of Language of Geneva Protocol: Prohibition of "Bacteriological Methods of

Warfare" and its Implication on Anti-Plant Warfare 67

8. Subsequent Interpretation of the Scope of the 1925 Geneva Protocol 72

D. WORLD WAR II AND ITS AFTERMATH 78

1. Voluntary Restraint in Use of Chemical/Biological Weapons. 78

2. Consideration and Rejection of Use of Herbicides by United States During World War II 81

3. Japanese and Italian Use of Chemical and Biological Weapons During World War II 84

4. Establishment of the International Military Tribunal at Nuremberg . 88

5. Law of the Nuremberg Tribunals. 89

6. Trials of War Criminals. 93

7. Charges Concerning Spoliation and Systematic Plunder 98

8. United States v. List: Wanton Devastation and Military Necessity 101

9. The Industry Cases: Flick and the Necessity Defense 103

10. The Industry Cases: Krupp and the Necessity Defense . 107

11. Industry Cases: Supply of Poison Gas; Krauch 111

12. Industry Cases: Supply of Poison Gas; Tesch. 114

13. The Introduction of the Atomic Bomb, and its Relevance to Application of Customary

Prohibitions to New Weapons 117

14. Use of Atomic Bombs in Japan: The Shimoda Case 126

15. 1949 Geneva Conventions and the Attempt to Protect Civilians. 128

E. ACCEPTANCE OF A CUSTOMARY PROHIBITION OF CHEMICAL AND BIOLOGICAL

WEAPONS AND USE OF CHEMICAL HERBICIDES . 132

1. Evidence of Opinio Juris . 132

2. British Use of Herbicides in Malaysia 134

3. United Nations Resolutions on 1925 Geneva Protocol. 136

4. Use of Chemical Herbicides in Vietnam, in Hindsight 147

III. ARGUMENT 151

A. DEFENDANTS SUPPLIED LARGE QUANTITIES OF TOXIC CHEMICALS KNOWING THAT

THEY WOULD BE SPRAYED OVER VAST POPULATED AREAS DURING THE WAR IN VIETNAM,

IN VIOLATION OF THE LAW OF NATIONS. 151

1. Supplying Toxic Chemicals Supplied for Widespread and Indiscriminate Use in War Violates a

Norm of International Law Accepted by the Civilized World and Defined with a Specificity

Comparable to the Features of the Offenses Recognized by the Supreme Court in Sosa v. Alvarez-

Machain. . 152

2. Corporations May be Held Liable Under the ATCA for Assisting in War Crimes or Other Serious

Violations of the Law of Nations . 155

3. Standard of Review for Motion to Dismiss . 156

4. The Facts Alleged by or Reasonably Inferable from the Amended Complaint State a Claim for

Relief Under the ATCA and the Law of Nations 157

5. International Law Precedent 165

B. NEITHER THE MILITARY NECESSITY DEFENSE NOR THE GOVERNMENT CONTRACTOR

DEFENSE APPLY TO PLAINTIFFS’ CLAIMS. 168

1. The Government Contractor Defense Does not Apply to War Crimes 168

2. TheDefendants' Acts in Supplying Herbicides Laced With Dioxin and Other Toxic Chemicals

Were Not Justified By Military Necessity 170

IV. CONCLUSION. 172