Moral and legal culpability for Agent Orange exposure

[wiggin]

As I'm sure you are mostly aware, in recent years the US has funded some efforts to decontaminate hotspots in Vietnam (mostly at old US airbases) which were contaminated with dioxins. Dioxins (notably TCDD) were an unintended contaminant in the defoliant/herbicide Agent Orange, which was used heavily in the Vietnam War, and have been linked to cancers and birth defects.

What I'm more interested in is the question of whether the US is either morally or legally liable for the unintended damage done to civilians through their Agent Orange spraying program. Obviously, Vietnam victims groups (and, I believe, the Vietnam government) feel the US is culpable for the victims of exposure to dioxins, and on the surface it seems they have a good point. On a closer analysis, though, I'm not so sure. There is no question that this is a humanitarian issue, of course, so victims of the spraying are definitely candidates for aid. Yet they would receive no more precedence than, say, famine victims in Ethiopia, and the US would have the same obligation to them as any other country. But does the US have a specific obligation to compensate them? I'm not sure.

It seems clear from documentation at the time that the US herbicide/defoliation program was intended to destroy food crops and jungle but was not targeted at killing/maiming civilians directly (though I should mention that the resulting famines probably killed quite a number of people). I believe that the US military was aware that Agent Orange was contaminated with dioxins, but its effects on long term human health were not widely understood, and the explicit strategic aims of the mission had nothing to do with targeting civilian health. So: is a government liable (morally or legally) for unintended civilian harm caused during wartime? I don't think it's really that different from the child who's maimed in an airstrike targeting the VC position next door - regrettable, certainly, and possibly a candidate for humanitarian aid (or a propaganda coup). But not necessarily a specific obligation.

I think that the spraying program during the war was wrongheaded and probably counterproductive. Intentionally destroying food crops seems like a bad idea given current counterinsurgency thinking, and it borders on a war crime. But the reason why it's wrong is because it caused famine and took away people's livelihood (and was a poor strategic move), not because it was an illegal use of chemical weapons. As such, the US had specific culpability for the resulting famines (and environmental effects?) but not, I think, for the resulting side effects from exposure to dioxin contaminants.

What do you think? I admit this is a bit of a legalistic ruling, and in the spirit of greater US-Vietnam cooperation it's probably a good idea to provide at least token assistance to the victims as well. But from just a theoretical standpoint, I don't think they need to.

[Flixy]

Morally I'd say you are culpable if the health effects were known at that point. Targeting civilians in such a way is, like creating the famine, bordering on a war crime, which makes it morally your responsibility, whether it was the intended goal or not. Even if you didn't know, you did create the problem, so even then I think you are morally culpable. Legally? Probably not, but I don't really know much about this kind of law (if that even exists).

[wiggin]

Hmm. I'm not sure I understand your logic. Are you morally culpable if an airstrike also maims/kills a child? If you were unaware that the child was there and had a legitimate reason for the airstrike, I'm not sure there's a moral obligation incurred.

As for the health effects, it wasn't very clear, though it became a bit more clear by the end of the war. The dioxins were an unintended contaminant in the herbicide (caused by a manufacturing flaw), and their effects had not been well understood.

The reason why I think the war crime might be famine creation is because one of the goals of the spraying was destroying food crops. They intentionally did it, rather than unintentionally causing unknown side effects. So, the real question is: if your actions, through no knowledge of your own, lead to significant suffering, are you morally culpable for it? I think some 'codes of honor' would suggest you are - you are responsible for all of the consequences of your actions. But I think that intention matters a lot in moral matters.

[Veldan Rath]

Agreed.

Legally, I don't think the argument is strong, BUT morally...yes. It's also smart to do so now.

Hindsight being what it is...but that period of time just gives me a sense of how arrogant and damn shortsighted US leaders and military commanders could be.

Wiping out civilians' food supply is just damn dumb. Then we get mad that they are cooperating with the enemy? Adds retarded on top of that shit sandwich.

[wiggin]

(To be fair, VR, while I agree it was a stupid program, there was more to it than just causing civilians to move into cities. They also targeting food crops because that was the main supply source for the VC; secondarily, they used Agent Orange for deforestation. So, not completely boneheaded, but still an awful idea.)

[Steely Glint]

So, if I injury someone with my car I'm not legally culpable if didn't intend to? Cool, I'll be less careful in future.

[Veldan Rath]

It was one awful idea on top of another with the conflict in general.

Granted it took Vietnam to begin the reevaluation on how to fight such a conflict on a force on force level...but the overall strategy was moronic.

[LittleFuzzy]

The US government certainly has moral culpability. If it were an agent that was truly subject to legal sanction it would also certainly have legal culpability but as it is the ability to even bring it into a legal arena without its agreement is suspect. There are fairly constant efforts to make it accept legal responsibility for the consequences of nuclear tests in New Mexico too *which don't even get the aid of a sovereign state backing them, as is the case for the Vietnamese* which never get anywhere too.

[wiggin]

So, if I injury someone with my car I'm not legally culpable if didn't intend to? Cool, I'll be less careful in future.

I don't think that's a very good comparison. Presumably, you're arguing that just as if you're negligent in driving your car, the US military was negligent in fully determining the effects of Agent Orange on human health. But there are a lot of caveats in assigning blame in a car crash, aren't there? Notably, proving that the person was driving in an unsafe and dangerous manner. If you were following the rules of the road and made a good-faith effort to not harm anyone, I don't think you're responsible for injuries in a car crash. Ditto with wartime - if we can prove that the US military was either not following the laws of war (questionable in this case, but it appears they were okay wrt civilians) or were being grossly negligent in (a) detecting the dioxin contamination and (b) connecting that to potential long-term effects on human health, then I'd agree with you. I'm not sure we can make that case, though.

The US government certainly has moral culpability. If it were an agent that was truly subject to legal sanction it would also certainly have legal culpability but as it is the ability to even bring it into a legal arena without its agreement is suspect. There are fairly constant efforts to make it accept legal responsibility for the consequences of nuclear tests in New Mexico too *which don't even get the aid of a sovereign state backing them, as is the case for the Vietnamese* which never get anywhere too.

I think the nuclear case is a bit different - for one, after the first bomb, the negative health effects of radiation exposure were widely known. But regardless, why do you think the US is morally culpable?


(BTW, I want to emphasize that this is mostly a theoretical exercise. I'm horrified by the fact that we did this in our recent history and think we should make a decent effort to mitigate its effects, both environmentally and on the health of our veterans and Vietnamese civilians. But I just wanted to take the moment to question the underlying moral logic being bandied about.)

[Flixy]

I don't think that's a very good comparison. Presumably, you're arguing that just as if you're negligent in driving your car, the US military was negligent in fully determining the effects of Agent Orange on human health. But there are a lot of caveats in assigning blame in a car crash, aren't there? Notably, proving that the person was driving in an unsafe and dangerous manner. If you were following the rules of the road and made a good-faith effort to not harm anyone, I don't think you're responsible for injuries in a car crash. Ditto with wartime - if we can prove that the US military was either not following the laws of war (questionable in this case, but it appears they were okay wrt civilians) or were being grossly negligent in (a) detecting the dioxin contamination and (b) connecting that to potential long-term effects on human health, then I'd agree with you. I'm not sure we can make that case, though.

In a car crash I think you have to prove your innocence instead of the other way around - only if you can prove you simply could not have avoided it, you're cleared if you hit a pedestrian or cyclist.

If you spray chemicals on crops, you know it will affect the civilians. Not knowing the bad effects in the long term is not even a good excuse - it wasn't that they knew it did not have long term effects, it's that they did not know the long term effects (if they didn't, I don't know when they figured that out). So by using it, you assume the risks that it might be harmful in the long run, because you use it before you know the effects. If I spray a chemical in your face without knowing what it is, and it turns out to be lethal, I'm still liable for your death, ecause by throwing it in your face I assumed the risk that it could be lethal, even if that wasn't my intention, nor did I know that it would be lethal, but I didn't know that it wasn't lethal either.

Simply using it before you properly know the effects is no excuse for ignorance of the effects, unless you had no reason to believe there would be effects. And considering you're spraying chemicals that kill plants, there is no way you can claim that.

[wiggin]

In a car crash I think you have to prove your innocence instead of the other way around - only if you can prove you simply could not have avoided it, you're cleared if you hit a pedestrian or cyclist.

*shrugs* I don't know the legal intricacies.

If you spray chemicals on crops, you know it will affect the civilians. Not knowing the bad effects in the long term is not even a good excuse - it wasn't that they knew it did not have long term effects, it's that they did not know the long term effects (if they didn't, I don't know when they figured that out).

This is wrong. They barely even knew about the contaminant dioxins, let alone any long term effects. Now it's fairly common for us to believe that herbicides, pesticides, etc. may have health effects; back in 1962 it was not the same. Furthermore, it's not clear even now that the main ingredients in Agent Orange actually do have long term health effects; it's only the contaminant dioxins we're sure about.

So by using it, you assume the risks that it might be harmful in the long run, because you use it before you know the effects. If I spray a chemical in your face without knowing what it is, and it turns out to be lethal, I'm still liable for your death, ecause by throwing it in your face I assumed the risk that it could be lethal, even if that wasn't my intention, nor did I know that it would be lethal, but I didn't know that it wasn't lethal either.

That's a bit of a tall order. Even rigorously tested FDA drugs often end up having unintended side effects; if you're unaware of any, and have a good reason for using the chemical, I don't think it's unreasonable or negligent to use it. You're taking a 2012 mentality and applying it to the knowledge base and experience of 50 years ago.

Simply using it before you properly know the effects is no excuse for ignorance of the effects, unless you had no reason to believe there would be effects. And considering you're spraying chemicals that kill plants, there is no way you can claim that.

They had every reason to believe it was fine. Its two components were used in civilian agriculture since the 40s; its mechanism of effect is well understood (they're synthetic plant hormones with no human analog). The issue was not Agent Orange itself, which was widely believed to be safe for humans.

[Khendraja'aro]

I think it's a given in every code of law:

Ignorance is not an excuse.

Even back then.

[wiggin]

Ignorance of the law is not an excuse, true. But that's not what we're talking about.

[Khendraja'aro]

I'm sorry, but I meant what I wrote. And you'll find that pretty much every judge will agree with me.

[wiggin]

Actually, you're wrong. Look up mens rea.

[Flixy]

This is wrong. They barely even knew about the contaminant dioxins, let alone any long term effects. Now it's fairly common for us to believe that herbicides, pesticides, etc. may have health effects; back in 1962 it was not the same. Furthermore, it's not clear even now that the main ingredients in Agent Orange actually do have long term health effects; it's only the contaminant dioxins we're sure about.


That's a bit of a tall order. Even rigorously tested FDA drugs often end up having unintended side effects; if you're unaware of any, and have a good reason for using the chemical, I don't think it's unreasonable or negligent to use it. You're taking a 2012 mentality and applying it to the knowledge base and experience of 50 years ago.

Rigorously tested being the key word, here. Unaware because of lack of trying to find out is not an excuse. Unaware in spite of rigorous testing, that is. Though even then, aren't medical companies liable?

They had every reason to believe it was fine. Its two components were used in civilian agriculture since the 40s; its mechanism of effect is well understood (they're synthetic plant hormones with no human analog). The issue was not Agent Orange itself, which was widely believed to be safe for humans.

When I typed agent, I meant the whole shebang of what they sprayed, of course.

Okay, looked it up. So the two active ingredients have a pretty low toxicity. Yet the USDA stopped using one of them on almost all crops in 1970, due to health concerns. Health risks of agent orange were first noticed in 1949, and the link to dioxin impurity in 1957. Birth defects in animals were noticed in 1969, and within two years of that it was phased out in Vietnam. Either way this doesn't read like the government ever did a proper effort to check for health effects. Either way, considering health effects were known at least from 1957, it's not a stretch to conclude that it breaches the chemical warfare treaty. And US veterans have received compensation, so apparently the government does​ have responsibility over the health effects.

Edit: Khen, Wiggin is basically right that ignorance is an excuse, but only when you could not have reasonably known something, not when you simply did not know because you never bothered to find out. Legally, not morally, of course.

[Steely Glint]

Even rigorously tested FDA drugs often end up having unintended side effects; if you're unaware of any, and have a good reason for using the chemical, I don't think it's unreasonable or negligent to use it.

Maybe not, but if there does turn out that there are some then the party that used the chemical has to be responsible for the consequences, legally and morally.

The difference between this case and an FDA approved drug is that the FDA drug is given to a person with their consent and presumably some kind of disclaimer that there may be unknown side effects and the purpose of giving them that drug is to cure them of something. Agent Orange was dropped without the consent of the people who owned the land it was being used on, to the sole benefit of the American war effort.

TL: DR: you can't just drop a load of defoliant on someone and then go "whoops! well, thems the breaks. any chemical has a degree of risk, you know" when it turns out to be poisoning them.

[Aimless]

Did the US cause the harm?

- Yes (provisionally, for the sake of argument)

Was there consent from the victims?

- No, no there wasn't. But you know how it is, wars are tricky or something.

Was there harmful intent?

- Perhaps. There doesn't seem to have been any beneficial intent or a strong enough desire to avoid harm. At the very least there was indifference or neglect.



I think it's strange to suggest that the US would not be morally culpable in this matter, but perhaps it can get away in the same way that some corporations dodge their responsibilities. To offload the responsibility on other nations strikes me as even dodgier. I suppose it works if you believe that being at war somehow trumps other concerns.

[Khendraja'aro]

Actually, you're wrong. Look up mens rea.

And? So, if I rob a bank and one of my co-bank robbers shoots someone inside the bank - I won't be held accountable for shooting the guy?

[LittleFuzzy]

I think the nuclear case is a bit different - for one, after the first bomb, the negative health effects of radiation exposure were widely known. But regardless, why do you think the US is morally culpable?

1st, we caused the harm. Irrespective of all other factors, that means we bear some measure of responsibility. 2nd, we caused this harm knowing we were taking action against the Vietnamese people, knowing that we would be affecting them. Even if this particular effect was unknown, we knew, we intended some measure of harm. 3rd, that the consequences have been so extended, far beyond what we intended does not exculpate us, it exacerbates our culpability. We weren't just wrong, we were reckless.

[Flixy]

And? So, if I rob a bank and one of my co-bank robbers shoots someone inside the bank - I won't be held accountable for shooting the guy?

By committing a bank robbery you assume the risk of someone getting killed. The act of bank robbery itself is reckless enough that you assume all the consequences, intended or not. The act of bank robbery gives you your mens rea.

If you give someone with a nut allergy something with nuts without knowing it, and kill him, you'll be in the clear though. No mens rea there!

[Aimless]

Perhaps the general assertion is that "ignorance of the moral law is no excuse". We'd probably be hard-pressed to find a moral law that condemns giving nuts to people in general.

[Lewkowski]

War != crime. You can't really make comparisons between war time actions and criminal activity. Do we owe reparations to Germany for fire bombing them? Hell no.

[Khendraja'aro]

By committing a bank robbery you assume the risk of someone getting killed. The act of bank robbery itself is reckless enough that you assume all the consequences, intended or not. The act of bank robbery gives you your mens rea.

If you give someone with a nut allergy something with nuts without knowing it, and kill him, you'll be in the clear though. No mens rea there!

And? Chemical attacks are in the same league. I mean, any chemist with half a brain will tell you that. Even back then.

[Flixy]

And? Chemical attacks are in the same league. I mean, any chemist with half a brain will tell you that. Even back then.

That was my point, I was just saying your ignorance is no excuse is not true, but only if you had reasonable grounds for ignorance (which if you ask me, they did not have here). Did you even read my posts?

[Khendraja'aro]

That was my point, I was just saying your ignorance is no excuse is not true, but only if you had reasonable grounds for ignorance (which if you ask me, they did not have here). Did you even read my posts?

Okay, you're right.

War != crime. You can't really make comparisons between war time actions and criminal activity. Do we owe reparations to Germany for fire bombing them? Hell no.

So, the holocaust, since it was comitted during a war, was not a crime?

And I'd be really, really careful with that firebombing thing. Unless you want to explain why firebombing Dresden was neccessary.

[Lewkowski]

The holocaust wasn't part of the war effort.

The fire bombing of Dresden was part of the war effort. As was nuking Japan.

[Flixy]

Depending on how loose you see it, a lot of war crimes are part of the war effort. Doesn't mean it's not still a war crime. Starving the local population and polluting the soil for decades to come are at least bordering on war crimes.

[Lewkowski]

Depending on how loose you see it, a lot of war crimes are part of the war effort. Doesn't mean it's not still a war crime. Starving the local population and polluting the soil for decades to come are at least bordering on war crimes.

So nuking Japan was a war crime? Don't think so.

[Veldan Rath]

Oooooooo...this gonna get fun now!