Inter american court on human rights

Nga came online with her silver hair in rollers.

“My hair is way too long now. I have not made time for a haircut yet,” she said, explaining the hair rollers in a video call with VnExpress International from her apartment in Paris, where she lives by herself.

At almost 80, Nga gives herself no time to rest. She is busy with indictments, statements, speeches and interviews, especially since last January when her name became a byword for a doughty fighter.

On January 25, Nga’s profile shot up among millions interested in the Vietnam War in general and Agent Orange in particular. That day, she officially filed a suit against 14 companies that supplied the U.S. Army with the notorious, toxic defoliant during the Vietnam War. Studies have shown that they knew it was toxic but decided to make it for profit anyway. The case was filed in the southern Paris suburb of Evry.

The defendants in Nga’s case are on top of a Who’s Who list in international agriculture, like Monsanto and Dow Chemicals. She has accused them of being responsible for physical ailments and mental suffering sustained by her, her children and countless others, as well as for severe damage done to the environment.

“This is not my trial alone, this is not my fight alone. By now, the name Tran To Nga should only be a symbol. This is a fight for the people, for truth,” she said.

Nga suffers from certain typical Agent Orange effects, including type 2 diabetes and an extremely rare insulin allergy. She has contracted tuberculosis twice and a cancer once. She lost one of her daughters to a malformation in the heart. She has also suffered Alpha Thalassemie, which results in impaired production of hemoglobin, the molecule that carries oxygen in the blood, and her daughter and grandchild have the syndrome.

Tran To Nga during a rally to call for justice for Agent Orange victims in Paris, 2019. Photo by Collectif Vietnam Dioxine.

Nga, a naturalized French citizen now, has been fully backed by Vietnam in her fight for justice.

In an open statement early February, the HCMC Peace Committee and HCMC Development Foundation, two organizations within the HCMC Union of Friendship Organizations, said that “in line with our deep and steadfast commitment to humanity and justice, we declare our full moral support for Tran To Nga’s legitimate right to have her case as a victim of dioxin/Agent Orange impacts heard before a court of justice.”

They said manufacturers cannot “shirk their moral responsibility for the terrible pain and suffering endured by combatants and civilians, and simply shrug off this damning reality.”

While international cooperation, including between the Vietnamese and U.S. authorities, has made some progress on mitigating dioxin/Agent Orange’s impact on Vietnam’s soil, specifically through decontamination of former airbase hotspots, “proper recognition and remediation of the many facets of its long-lasting impact on humans, especially civilians in Vietnam, still lags far behind,” they said.

Foreign Affairs Ministry spokeswoman Le Thi Thu Hang said at a recent press meet: “We support Agent Orange/dioxin victims claiming legal liability from the U.S. chemical firms that manufactured and traded Agent Orange/dioxin during the war in Vietnam.”

Multinational firms taken to court by Tran To Nga should take responsibility for the impacts of the toxic defoliant used in Vietnam, she added.

A reporter and a fighter

Tran To Nga was born in 1942 in southern Vietnam. After graduating from college in Hanoi, she returned to the south and worked as a journalist for the Liberation News Agency, which later merged with the Vietnam News Agency. She covered the Vietnam War and also fought as a soldier. She was jailed for almost a year in 1974 and released when the war ended in 1975.

After the war, she became an educator as principal of the Le Thi Hong Gam and Marie Curie high schools, and later, the HCMC University of Technology and Education.

In 1993, she moved to France.

After she retired Nga engaged in charity work both in France and Vietnam, making herself a connection between benefactors and those in need, especially children. In 2004, her work was recognized with the Ordre national de la Légion d’honneur, or The Legion of Honor, the highest French order of merit.

“I have been doing a lot of charity work, but it was only in 2008 that I truly put my heart and soul into helping Agent Orange victims,” Nga said.

That year, Nga had struck a deal with a donor to build houses for people in difficulties in Vietnam. On some friends’ advice, she decided to direct this assistance to Agent Orange victims. She asked local authorities in Vietnam for beneficiary suggestions and was advised to visit the northern province of Thai Binh.

That trip turned out to be a life changer.

‘Don’t cry’

“One day I visited a family and met a person whose whole body is distorted with crooked arms and legs, and humps both in the front and back of the body. I burst into tears immediately.

“What happened next was that the person reached out with a crooked arm and wiped my tears, telling me, ‘Don’t cry!’

“I realized at that moment that whatever miseries I have experienced in my life, it could never compare with the suffering of such people.

“For days after that visit, I could not sleep well. If I don’t do anything, then who. I asked myself.”

As a direct participant in the war, Nga had direct experience of being exposed to Agent Orange, and could no longer do nothing.

She decided to devote the rest of her life to supporting Agent Orange victims and procuring justice for them.

Lending her voice

In 2009, when Nga returned to France, she learned by chance that the International Peoples’ Tribunal of Conscience in Support of the Vietnamese Victims of Agent Orange would meet in May in Paris to hear evidence on the impacts of the use of Agent Orange by the U.S. military in Vietnam from 1961 until 1971.

Nga wrote to the organizer of the tribunal, offering herself as a witness, “on behalf of those that can no longer be there to speak up because they had died in the war, and those that cannot make it to the court.” Her offer was accepted.

The day she showed up as a witness, nobody knew who she was because she was on her own while all others testifying were introduced by the Vietnam Association for Victims of Agent Orange/Dioxin (VAVA).

The only reference she got was from Nguyen Thi Binh, who had led Vietnam’s delegation to negotiate at the Paris Peace Conference and later served as the nation’s vice president. Binh introduced Nga to other people as “the daughter of a friend of mine.” Nga’s mother was Nguyen Thi Tu, who was chairwoman of the South Vietnam Women’s Liberation Association.

Compared to other witnesses, Nga had a distinct advantage: her French skills. Before attending the tribunal, she had already submitted a statement that she wrote in Vietnamese and translated into French by herself.

Nga also speaks French fluently and this made her testimony more convincing as she detailed the serious impacts of Agent Orange that she had witnessed as a soldier, a victim and as an activist.

Her statement was powerful: “I would like to invite all of you, all the Americans, all the lawyers, to come to Vietnam with me and see for yourself the consequences of the Agent Orange; and I’m sure you will never have the courage again to defend those that caused such consequences.”

She has repeated that statement at the ongoing trial in Evry.

By now, it is known internationally that between 1961 and 1971, the U.S. army sprayed some 80 million liters of Agent Orange, a compound of dioxins and dioxin-like substances, over 78,000 square kilometers (30,000 square miles) in southern Vietnam.

Dioxin stays in the soil and at the bottom of water bodies for generations, entering the food chain through meat, fish and other animals, and has been found at alarmingly high levels in human breast milk.

Between 2.1 to 4.8 million Vietnamese were directly exposed to Agent Orange and other chemicals before the war ended in April 1975. These chemicals have been linked to cancers, birth defects and many other chronic diseases.

Nga’s appearance at the tribunal took her fight for Agent Orange victims to a new level. More and more people started to know what she was doing and she captured the media’s interest.

“From that day, I officially walked into the public light.”

The perfect candidate

After the 2009 appearance, Nga was approached by André Bouny, a French writer and president of the International Committee of Support (CIS) to support victims of Agent Orange; and William Bourdon, a French lawyer who practices criminal law, specializing in white-collar crime, communications law and human rights.

Even before they saw her at the tribunal, the two men had visited Vietnam and met with Agent Orange victims. They were looking for ways to help and fight for them.

In 2008, in a meeting with the then Prime Minister of Vietnam, Nguyen Tan Dung, they said if there was an Agent Orange victim with French citizenship, they could help that person file a suit in France against U.S. firms that had either made or sold dioxin, on behalf of all other Vietnamese victims.

Nga was the perfect candidate: She is the only plaintiff who can sue firms that had made and traded dioxin on behalf of Agent Orange victims in Vietnam. She is a victim herself and a Vietnamese-French citizen who lives in the only country that allows its citizens to turn to the courts for justice against foreign attacks.

It took Nga a while to accept the offer made by Bouny and Bourdon.

“I was almost 70 then and quite satisfied with what I’d done so far, spending years doing charity work and supporting unlucky people. So I was not keen on any involvement in such legal drama.”

However, some people, including several in Vietnam, convinced her, telling her how important it would be for her to take the case, as she lived in the only country that allows such an international lawsuit.

They also said if she turned down the offer, there would be no one else to pick up the cudgels, ever. Before her, the VAVA had filed a lawsuit in the U.S. in 2004 against 37 U.S. chemical manufacturers – including Dow Chemical and Monsanto. However, the case was rejected three times by U.S. courts, which ruled that there was no legal basis for the plaintiff’s claims.

After Nga eventually decided to sue the U.S. chemical firms, lawyers explained to her that she could always accept the option of reconciliation outside the court, “which would allow me to get lots of money from those companies.”

The other option would be to take “a very long and very challenging path, but would pave the way to justice for so many Agent Orange victims out there.”

If the French court rules in her favor, it will be the first time ever that Vietnamese victims of the Agent Orange win compensation for the horrific aftereffects caused. So far, only military veterans from the U.S., Australia and South Korea have been compensated.

Nga chose the latter path, one that she has walked on for more than a decade and that is yet to reach its end.

A ‘happy’ poisoning

For five years (2009 to 2013), Nga had a lot to do to prepare the paperwork for her lawsuit. During this period, she had to convince and get the endorsement of VAVA members.

In 2011, though Nga had been in the fight for almost two years, official medical confirmation was needed that she had a higher-than-permitted level of dioxin in her body.

Nga explained that such a test was costly, one that is beyond many people in Vietnam. For the case, Nga had her blood samples taken for testing and sent to a laboratory in Germany via the VAVA. The test results arrived after two months, cementing the foundation for her case: the amount of dioxin in her blood is a bit higher than the European standard but much higher than the Vietnamese standard.

“It means that after more than 50 years, it is still there in my body. But, holding the result, I cried a happy tear, knowing for sure that I was totally capable of taking those firms to court.”

But that very year, French President Nicolas Sarkozy removed the law allowing international courts in the country.

Nga’s hands were tied. She planned to switch to Belgium but that European country had also removed the relevant law, following an incident related to the arrest of Chilean dictator Augusto Pinochet.

Nga ended up waiting until 2013, when France had a new president and the law was reinstated. In March that year, the Crown Court of Evry City approved her petition for the case. Until then, every preparation for the lawsuit had remained undisclosed to the public.

However, she encountered another problem: money.

Nga said her personal income had always placed her among the poorest population segment in France, and that has not changed until today.

“Even my lawyers told me: ‘We know you cannot afford to pay us. We will not charge you anything.’”

But for the lawsuit to be taken to the international court, she had to have an international lawyer translate an indictment of 30 pages from French to English aside from other related fees. In all, she needed about $36,000 euros.

Her lawyers held a meeting, gathering around 20 people that Nga “had never met before.” Among them were overseas Vietnamese, French people, and some that had joined the war as soldiers fighting for the South Vietnamese side backed by the U.S., which means they were once Nga’s rivals.

Nga and the lawyers tried to explain the cause of her trial and why it was essential. In just one week, she received $16,000 from the people who attended the meeting.

“I was very happy, but my surprise was greater. It was for me such clear example for national reconciliation. The reconciliation happened only because everyone believed in justice and wanted to fight for it,” she said.

The rest of the sum was raised by the VAVA via different sources.

In April 2014, the court opened the first procedural session. A total of 26 chemical companies were sued in the beginning, but 12 of them have been sold or shut down over the past years.

After going through 19 procedural sessions during which Nga had to struggle with various types of legal issues aside from her own health problems, on June 29, 2020, the court finally issued a notice in her case and directed that procedural sessions be closed on September 28, so that the trial with litigation sessions could begin on October 12 the same year.

The trial, however, was further postponed to January 25, 2021 due to the pandemic.

Tran To Nga and André Bouny at the court on January 25 in Evry, France. Photo by Collectif Vietnam Dioxine.

At the trial, 20 lawyers of the 14 U.S. chemical companies, including Bayer-Monsanto, Dow Chemical, Harcros Chemicals, Uniroyal Chemical and Thompson-Hayward Chemical among others, had four hours to present their arguments debate, while Nga’s three lawyers had one hour and 30 minutes.

Nga’s lawyers – William Bourdon, Amélie Lefebvre and Bertrand Repolt – have been representing Nga pro bono from 2014 onwards.

Speaking on behalf of the three lawyers, Repolt wrote in an email: “We chose to take this case because Agent Orange is a drama in 20th century history linked to a war that made no sense. No one wants to see such a human and environmental disaster recurring in the future.

“One of the ways to prevent this from happening again is to make everyone understand that there is no impunity, including no impunity for the American companies that supplied Agent Orange to the U.S. Army and who must now account for what they did and assume their responsibilities.”

Commenting on their support, Nga said: “To reach where I am right now, I don’t know how to thank my lawyers and the public around who have been supporting me nonstop, especially the wonderful young people here in France.”

From a virtual unknown, Nga now has thousands of people who have supported her directly and via different social media platforms.

The France-based NGO, Collectif Vietnam Dioxine, which has backed Nga from the beginning, wrote on their Facebook page: “Almost 60 years after Agent Orange’s first spread, we remember and are still here to support the victims of yesterday and today of the first and greatest ecocide in history. Our fight will serve future generations!”

On January 31, a rally held by this organization gathered nearly 300 people in Trocadero Square, expressing support for Nga and other victims of Agent Orange in their fight for justice.

The NGO was established in 2004 to raise awareness and claim justice for the Agent Orange victims.

“The organization had not even considered the option that Ms. Nga would one day appear and take the issue to trial, and after six years of non-stop activism, the issue has caused a social upheaval in France,” Charlotte Tsang, in charge of media and communications for the NGO, wrote in an email.

“Ms. Nga is our last hope. Being French and Vietnamese directly touched by Agent Orange during the Vietnam War, she fulfills the French requirements to condemn the firms responsible for Agent Orange’s conception,” she added.

Not us… they knew

The 14 multinationals have argued that they cannot be held responsible for the use the American military made of their product.

Bayer said Agent Orange was made “under the sole management of the U.S. government for exclusively military purposes.” Its lawyers argued that the court was not the proper jurisdiction for holding the trial, AFP reported.

Monsanto lawyer Jean-Daniel Bretzner told the court that the companies “acted on the orders of a government and on its behalf,” and since the U.S. government cannot be expected to answer to a foreign court for its war actions, the companies should also be immune from prosecution, he said.

Nga’s lawyer Repolt said he and the other two lawyers in the team had had to provide proof of the liability of American companies.

“Indeed, we had to demonstrate that when the chemical companies supplied Agent Orange, they were aware of the dangerousness of the product. This required producing, before the French judge, exchanges of internal correspondences from the 1960s, demonstrating this perfect knowledge of dangerousness. Given the age of the facts, this was not easy, but I think we produced sufficiently convincing documents in court to win our case.”

For Nga, the case has “obtained some initial successes in making many more people know about Agent Orange/dioxin and what it has done to the Vietnamese people because apparently, before the trial, not many people were aware of this issue.”

Tran To Nga waves as she stands with her supporters at the Trocadero Square in Paris, January 31, 2021. Photo by Collectif Vietnam Dioxine.

Tsang of Collectif Vietnam Dioxine made the same observation: “When Ms. Nga launched the legal proceedings in 2014, the scandal of Agent Orange was pretty unknown in France.

“The trial happened but the challenge remained the same: how can we raise Agent Orange as a global environmental and social issue in France? How can we raise Ms. Nga’s trial as a symbol of resistance against imperialist wars and ecocide?”

The court’s ruling is scheduled on May 10.

From a legal point of view, attorney Repolt said: “If we do not succeed in establishing legal responsibility, before French or another foreign court, the only reasonable and effective way that we will have left is the diplomatic channel, that is to say a commitment by the U.S. for the benefit of Vietnam to repair the damage caused by the war, especially of Agent Orange.”

The U.S. government is working on different projects to clean up dioxin contamination in Vietnam. It was announced last month that the clean up of an area at the Bien Hoa Airport, a former airbase of the U.S. army during the war, has been completed. The U.S. has also approved a grant of $65 million to support people with disabilities affected by Agent Orange in eight provinces.

‘I’ve already won’

Asked if she had ever thought of giving up, given the long and tough path she’s been on, Nga said that the Agent Orange victims in Vietnam, including those whose parents used to fight the war as her comrades, “have placed so much hope in me and I cannot let them down.

“Their hope and their trust does not allow me to ever stop fighting.

“I am old and really sick now, and I could die anytime, but I do not regret anything I have done. For the long fight ahead, I only wish to have three things: courage, patience and hope. The truth has been distorted, and I have to keep speaking up.”

And, she added firmly: “We will not lose, the power of truth and justice will win.”

“We could see so clearly at the court that when the group of almost 20 lawyers that represent the 14 firms showed up, they were extremely lonely; while my three lawyers and I have been receiving such warm welcome from the public,” she said, adding that there were people waiting for her outside the court just to tell her that they will always stand beside her.

“Such genuine support can only happen because people know what is right and believe in justice, and in that, I have already won.”