Metropolitan News-Enterprise


Thursday, September 25, 2008


Page 1


Court Rejects Genocide Suit Against Pesticide Makers




A suit charging manufacturers, distributors and users of the pesticide DBCP with genocide and crimes against humanity in causing workers in the Ivory Coast to become sterile failed to state a cause of action, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Affirming the dismissal of all claims, the panel said there was no evidence the defendants had any specific intent to harm the plaintiffs, nor any allegation that the alleged conduct occurred within the context of state or organizational policy.

The plaintiffs sued AMVAC Chemical Corporation, Dow Chemical Company, Shell Oil Company, and several food companies under the Alien Tort Statute. The law allows aliens to sue in U.S. courts “for a tort only, committed in violation of the law of nations or a treaty of the United States.”

The workers alleged that they were exposed to DBCP while working on banana and pineapple plantations in the villages of Kakoukro and Ono.

They also alleged that AMVAC continued making the pesticide—use of which was suspended in this country in 1977—and selling it for use in Africa despite knowing of its dangerous propensities. They further charged that one of the defendants, Dole Foods, required the use of DBCP under its agreements to purchase fruit produced on the plantations, owned by the Ivory Coast government.

U.S. District Judge George H. Wu of the Central District of California granted judgment on the pleadings with respect to the genocide claim, saying there was no evidence that any defendant had the specific intent to harm a group of people.

He found that the remaining claims, including crimes against humanity, were inadequately pled because they lacked allegations of state action.

Wu allowed the plaintiffs to amend the complaint, but after reviewing the amended complaint and the plaintiffs’ proffer of what they might be able to prove after discovery, the judge dismissed the entire action. He reasoned that the most the plaintiffs could show was that the government knew that DBCP was being used and was harmful, which would not be enough to make the use of the pesticide a governmental act as a matter of law.

Senior U.S. District Judge Stephen McNamee, sitting as a Ninth Circuit judge by designation and writing for the court, agreed with Wu that the plaintiffs lacked a valid claim.

McNamee rejected the contention, based on the Rome Statute of the International Criminal Court, that the defendants’ continued use of DBCP, allegedly with knowledge of its harmful effects, satisfied the intent element of genocide.

The Rome Statute, the judge noted, has never been ratified by the United States, and there is no current indication that it will be ratified by this country, so it is not a “treaty of the United States.” Nor does the fact that it has been ratified by more than 100 other nations mean that its definitions are part of the “law of nations,” McNamee declared.

The commonly accepted definition of genocide, the judge explained, is that of the 1948 Genocide Convention—specified criminal acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” That definition has been accepted by, among other bodies, the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for Yugoslavia.

The judge distinguished a 1947 ruling of the Nuremberg War Crimes Tribunal that allowed the prosecution of those who allegedly supplied poison gas for use in the concentration camps with knowledge that it would be used to exterminate internees. Those charges, McNamee said, were for war crimes other than genocide, and did not require a showing of specific intent.

McNamee further cited a ruling earlier this year by the Second Circuit, affirming the dismissal of an action by Vietnamese nationals charging that they had been harmed as a result of the military’s use of Agent Orange and other herbicides during the Vietnam War.

Turning to the crimes-against-humanity claim, the judge explained that the plaintiffs would have to prove that the criminal acts were conducted under a policy of a government or a “State-like organization,” such as an unofficial militia, possessing “de facto control over a defined territory.”

There was, McNamee explained, no allegation that the defendants asserted de facto control over the villages where the plantations were located. Nor did the allegations that the government owned the plantations and purchased the pesticide for use there sufficiently plead state action, since there was no allegation that the government had a policy of sterilizing workers, the judge said.

The opinion was joined by Ninth Circuit Senior Judge Cynthia Holcomb Hall and Judge Pamela Ann Rymer.

Attorneys on appeal were Raphael Metzger of Long Beach for the plaintiffs; Ewin V. Woodsome Jr. of Orrick, Herrington & Sutcliffe for The Dow Chemical Company; Lawrence P. Riff of Steptoe & Johnson for Shell Oil Company; Robert G. Crow of Oakland’s Boornazian, Jensen & Garthe for AMVAC; and Frederick L. McKnight of Jones Day for Dole Food Company and its affiliates.

The case is Abagninin v. AMVAC Chemical Corporation, 07-56326.


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