-

1. What is Agent
Orange
Historical
background of
Agent Orange
Usage of Agent
Orange in the
Vietnam War
Impacts of Agent
Orange towards the
environment and
civilians
Applicability of
IHL in those
situations
A VISIT TO ICRC: PRESENTATION ON
THE USAGE OF AGENT ORANGE IN
THE VIETNAM WAR
Presented by: IHL students, Faculty of Law, Universiti Kebangsaan Malaysia (UKM)
23 April 2019

2.  Three decades after US soldiers and diplomats scrambled
aboard the last planes out of Saigon in April 1975, the
toxins they left behind still poison Vietnam. Relations with
the United States have been normalised since the 1990s, but
the denial of justice to the victims of Agent Orange remains
a major bone of contention.
 Not only are Vietnamese still maimed from treading on
unexploded bombs, they are also victims of this insidious
scourge that poisons water and food supplies, causing
various cancers and crippling deformities. Eighty million
litres of Agent Orange were sprayed on the jungles of
Vietnam, destroying swathes of irreplaceable rainforest
through massive defoliation and leaving a toxic trail of
dioxin contamination in the soil for decades. The legacy of
this chemical warfare can even be inflicted on the unborn,
with Agent Orange birth deformities now being passed on
to a third generation.
 Victims of Agent Orange suffer a great deal, some of which
are quickly lethal and others which doom people to a life of
horrific misery. Due to these diseases, many have been
denied the most basic of human rights – especially the right
to life, and the pursuit of happiness.
INTRODUCTION

3.  A mixture of herbicide and defoliant chemical.
 Historically, tectical herbicides were herbicides and formulations
developed specifically by the United State Department of Defence
(DOD) to be used in combat operations.
 The belief that commercially available herbicides were simply
purchased from US Chemical companies and deployed directly to
Vietnam was incorrect.
 The missions to develop tactical herbicides and delivery
technologies were assigned to the US Army Chemical Corps
specifically to the Plant Sciences Laboratories at Maryland.
 In Vietnam, prior to their use by the military, the major
component of Agent Orange were adopted for domestic
agricultural use.
 The mixture have caused major health problems for many
individuals who were exposed.
 Dr Jean Grassman from Brooklyn College said that the dioxin in
Agent Orange is a potent cellular disregulator that alters several
pathways and disrupts many bodily systems.
 Children are sensitive to it and the intrauterine or postnatal
exposure to dioxin may result in altered immune,
neurobehavioral and hormonal functioning.
 Women pass their exposure to their children both in utero and
through breast feed.
WHAT IS AGENT ORANGE?

5. ENVIRONMENTAL IMPACTS OF AGENT
ORANGE: VIETNAM
• The main function is to selectively kill plants or foliage
upon application by inflicting excessive hormonal
growth.1
• Since discontinuation in 1971, research has shown that
as much as 2.6 million hectares of land in Vietnam has
been sprayed by agent orange with some upland forest
being sprayed up to ten more times.2
• An estimated 49.3 million litres were sprayed over 2.6
million acres during the war.3
• There is also long-term contamination of soil that is
still detectable after 30 years of initial spraying. Zones
of contaminations are expanding from originally
contaminated zones.4
• Certain areas such as Da Nang, has been traced with
high levels of dioxin such as Agent Orange that shrubs
and weeds still cannot be grown.5

6. DIRECT PROVISIONS
1) AP I to the Geneva Convention of 1949
 Article 35(3)
Protection towards the natural environment as the basic rule of IHL which
concerns the methods and means of warfare and protects the environment.
 Article 55
Prohibition on methods of warfare intended or expected to cause widespread,
long-term and severe damage to the natural environment.
Cons: imprecise definitions for the terms “widespread,” “long-term” and
“severe.”
2) UN Convention on the Prohibition of Military or Any Other Use of
Environmental Modification Techniques (ENMOD) (1976)
 prohibit the use of environmental modification techniques as a means of
warfare.
APPLICABILITY OF IHL TOWARDS
THE ENVIRONMENT

7. INDIRECT PROVISIONS
1) AP II to the Geneva Convention of 1949
 Article 14
Protection of objects indispensable to the survival of the civilian population
 Article 15
Protection of works and installations containing dangerous forces
 Article 16
Does not explicitly mention nature, but can be used as legal protection of the natural environment
during armed conflict - cultural objects and places of worship
2) The Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases,
and of Bacteriological Methods of Warfare (1925)
 Indirectly provides provisions to protect the environment as the chemicals used are inimical to
the environment.
3) Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which
May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW), and its
Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons (1980)
4) The Convention on the Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on their Destruction (BWC) (1972)
 protect the environment in armed conflict from weapons that are likely to cause significant
environmental degradation
5) Convention on Certain Conventional Weapons (CCW) (1980)
 prohibit or restrict the use of certain conventional weapons

8. GENERAL PRINCIPLE OF IHL
 Distinction – Article 52 (2) AP I
 Military necessity – Article 23 (g) 4th Geneva
Convention
 Proportionality – Article 57 AP I
 Humanity - Martens Clause
CUSTOMARY IHL – RULE 76 (HERBICIDES)
 Treaties
 Military Manuals
 National Legislation
 National Case Law

9.  The use of the toxic herbicide Agent Orange, and the resulting
massive deforestation and chemical contamination it caused,
sparked an international outcry leading to the creation of two
new international legal instruments. The Environmental
Modification Convention (ENMOD) was adopted in 1976 to
prohibit the use of environmental modification techniques as a
means of warfare.
 HOW DID ENMOD COME ABOUT?
SCHOLARLY OPINIONS ON THE USE OF
AGENT ORANGE WITH REGARDS TO
ENVIRONMENT

10. A.
1. Richard Falk developed this set of ideas and framed them in legal terms. In
his 1973 publication, ‘Environmental Warfare, Facts, Appraisal and
Proposals’, Falk proceeded in two steps: first, he explored whether the laws of
war proscribed ‘environmental warfare’ (ie the use of herbicides, bulldozers
and high-explosive bombs); second, he proposed legal reforms to address
ecological devastation in Vietnam.32 Falk concluded that, by deploying
herbicides, the US violated the 1925 Geneva Protocol on Gas, Chemical and
Bacteriological Warfare (‘Geneva Protocol’).
1. Falk called for the development of new instruments, namely an
International Convention on the Crime of Ecocide and a Draft Protocol on
Environmental Warfare.36 He argued that such normative agenda had
gained momentum and that [t]he Indochina context, given the public
outrage over the desecration of the land at a time of rising environmental
consciousness, creates a target of opportunity comparable to Nuremberg.
Surely it is no exaggeration to consider the forests and plantations treated
by Agent Orange as an Auschwitz for environmental values, certainly not
from the perspective of such a distinct environmental species as the
mangrove tree or nipa palm.

11.  3. Despite the advocacy from the scientific and legal
communities, a far less ambitious result was achieved.
The Convention on the Prohibition of Military or Any
Other Hostile Uses of Environmental Modification
Techniques (‘ENMOD Convention’) was adopted in
1976 which does not entail any criminal sanction.
 *This was the pioneering steps taken by scholars and
legal experts before the introduction of Additional
Protocols.

12.  The United States policy of chemical deforestation during
the Vietnam War, using Agent Orange is a clear example
of a method of warfare with widespread, long-term and
severe implications to the natural environment. These
incidental impacts are blatantly inconsistent with the
principle of proportionality.
B. Jonathan George Crowe and Kylie Weston
Scheuber in their book titled Principles of IHL
highlighted that:

13.  The Vietnam War of 1961–75 is notorious for the disastrous
environmental and human impact of the US counterinsurgency
warfare. Having to confront guerrilla tactics by its enemy, with
which it was not particularly familiar, and relying on a relatively
small ground force, the US Army compensated this deficit by
employing technologically advanced weaponry to manipulate
the environment for hostile purposes, the most heinous being
Operation Ranch.
 Looking into the reparations:
c. Eliana Cusato - PhD Candidate, Faculty of Law, National University
of Singapore. An earlier draft of this article was presented at the
Research Workshop on Protecting Nature in Conflicts and Building
Peace: Success Stories in Conflicts and their Aftermaths, 15th Annual
Colloquium of IUCN-AEL, Cebu (Philippines), 30 May 2017.

14.  The position of the US government has always been that no rule of
international law prohibited, at the time, the military use of chemical
herbicides, nor proscribed the destruction of crops intended for use only by the
enemy forces. Further, the US has repeatedly denied any scientific evidence of a
direct causal link between the exposure to Agent Orange and diseases affecting
the Vietnamese population. The US-funded environmental remediation
programmes and assistance to Vietnamese people suffering from disabilities
have been accompanied by the unequivocal denial of any legal liability for the
use of Agent Orange or ‘wrongdoing’.
 They do not imply any recognition of wrongdoing or legal responsibility and
cannot be regarded as efforts to do justice. Rather, they are justified by generic
humanitarian and development concerns, and present some similarities with
the category of ex gratia payments, as discussed above. The idea of ‘voluntary
remediation’ (ie reparation without legal compulsion), translated from the
Vietnamese case to instances of environmental degradation associated with
present-day conflicts, raises difficult questions of what compliance, prevention
and redress mean in situations of asymmetric warfare.

15.  The use of Agent Orange as a chemical weapon has left tangible, long-term impacts upon
the Vietnamese people that live in Vietnam.
 The effects of Agent Orange on the Vietnamese range from a variety of health effects,
ecological effects, and sociopolitical effects.
 The deadly ingredient in Agent Orange, TCDD dioxin, has horrendous physical and
psychological health effects.
 Dioxins can disrupt the endocrine system by forming unusual enzyme complexes that act
as an intermediary in the breakdown of steroid-hormone receptors.
 According to the Vietnamese Association of Victims of Agent Orange (VAVA), diseases
caused by exposure to Agent Orange include cancers, neurological disorders, spinal bifida,
cleft palette, decreased in immunity, endocrine system disorders, reproduction disorders
and severe birth defects.
 Researchers at the Institute of Medicine also found statistical associations between dioxin
exposure and type 2 diabetes, many types of leukemia, Hodgkin’s disease, non-Hodgkin’s
lymphoma, prostate and respiratory cancers, heart disease, Parkinson’s disease, and birth
defects among other ailments.
IMPACTS OF AGENT ORANGE
TOWARDS CIVILIANS

16.  IHL covers two areas :
i) protection of those who are not, or no longer, taking part in fighting; and
ii) restrictions on the means of warfare – in particular weapons – and the
methods of warfare, such as military tactics.
 Principle of distinction – not comply.
 Civilians directly affected by the herbicides.
 Civilians objects such as roads, rivers, canals, rice paddies and farmland also
were directly affected by the use of the U.S warfare.
 IHL puts restrictions on the means of warfare specifically on the weapons and
the methods of warfare, such as military tactics.
 The U.S. military did not follow the restrictions because they use chemical
weapons i.e Agent Orange which effects are severely damaging.
APPLICABILITY OF IHL TOWARDS
THE CIVILIANS

17. SCHOLARLY OPINIONS ON THE USE OF
AGENT ORANGE TOWARDS CIVILIAN
No chemical is suitable for use as a weapon,
no matter how harmless it might seem to be
on the basis of domestic or civil experience
WHY? It can cause either short-term or
the long-term ecological and
public health ramifications
The brunt of such a chemical attack is felt by the civil
population and the land upon which these people
depend for their wellbeing and livelihood and that this
effect will continue to be felt long after the use of the
chemical ceases
EFFECT

18. US AND ITS USAGE OF AGENT
ORANGE IN SOUTH VIETNAM
US
Non-party to the
Geneva Protocol
Ratifies and party to
the Hague
Declaration 1907
Ratifies the
Nuremberg and
Tokyo trial following
World War II.
Clearly
committed
prohibition when
it allowed the
usage of agent
orange in South
Vietnam.

19. PLANT+HUMAN+ANIMALS
= ECOLOGICAL SYSTEM
By military used, herbicides did have an alarming
impact on the land and civilian. Their use results
inevitably in extended human suffering especially to
non-combatants all out of proportion to any
immediate military benefits that could be claimed for
them.
There are many evidences to show that there are
vassal damage caused by the military usage of it
upon civilian prominently as what was happened in
South Vietnam.
ARGUMENTS ALLOWING HERBICIDES
AS CHEMICAL WEAPONS
It would only kill
or harm plants but
not people
Purpose of using
herbicides as
chemical weapons
To destroy
forests in an
attempt to
deny
daytime
cover and
sanctuary to
the enemy
To destroy
the crops
so foods
can be
deny to the
enemy
TOXIC
BIRTH
DEFECTS
MUTATION
CANCER
HOWEVER
Among effect of military use of Agent
Orange in Vietnam

20. EVIDENCES OF HEALTH HAZARDS CAUSED ON
CIVILIAN BY MILITARY USE OF AGENT ORANGE
1967
Yale botanist Arthur W. Galston, warned of the hazards of widespread use of
herbicides that it could cause possible harm to people and to the fragile ecological
relationship likely to be disrupted
Independent researchers began reporting the propensity of 2,4,5-T to cause birth
defects in laboratory animals
The Vietnamese press circulated reports of large numbers of human birth defects
allegedly attributable to herbicide Orange contact
The Federal Government, pursuant to the Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA), I 9 cancelled all 2,4,5-T uses on food crops
The Secretary of Defense announced that herbicide operations in Vietnam also
would halt, although the GAO report confirms that military usage did not completely
abate until 1971
The Veterans Administration (VA) began hearing herbicide complaints where
veterans have tried to relate defoliant exposure to cancer, skin rashes, weight loss,
liver damage, dampened libido, fatigue, dizziness, depression, and birth defects in
children
1969
1970
1977

21. 3) There must be a heed to what scientific and moral judgment of
scientist who have petitioned the US government to renounce the use
of herbicides as weapons.
PROPOSITION ON HOW(s) HERBICIDES
SHOULD BE PROHIBITED AS CHEMICAL
WEAPONS
1) Be included in Geneva Protocol in straightforward and
unambiguous and to include them all rather than attempt to make
quantitative distributions based upon relative degree of toxicity or
human impact for nations cannot agree on where to draw the line.
2) There must be a reliance on the good legal and moral judgment
of the 82 or more members of the world community of nations who have
publicly condemned the use of herbicides as weapons of war.