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IVORY COAST: Ivory Coast workers can't sue firms in U.S.

by Bob EgelkoSan Francisco Chronicle
September 25th, 2008

Ivory Coast plantation workers who claim they were sterilized by a U.S.-made pesticide can't sue the manufacturers and distributors of the chemical in the United States because they can't show the companies intended to harm them, a federal appeals court ruled Wednesday.

In a lawsuit filed in a Los Angeles federal court, nearly 700 workers in the West African nation accused the companies of genocide and crimes against humanity for allegedly marketing DBCP abroad after the pesticide, used to kill nematodes on banana crops, was outlawed in the United States.

The chemical was first banned in California in 1977 after men working at a San Joaquin County chemical plant were found to be sterile. The Environmental Protection Agency prohibited use of DBCP nationwide in 1979. But export of the chemical remained legal, and the Ivory Coast plaintiffs alleged that it was sold and used in their country through the mid-1980s by companies that had known of its hazards since the 1950s.

The defendants included Dow Chemical and Shell Oil, which made DBCP, and Dole Foods, which allegedly entered into a partnership with the Ivory Coast government to grow bananas sprayed with the pesticide. The suit was filed under a law nearly as old as the United States - the 1789 Alien Tort Statute, which allows foreigners to file damages claims in U.S. courts for violations of international human rights.

But the Ninth U.S. Circuit Court of Appeals in San Francisco said the workmen's allegations, even if proven, wouldn't show that any of the companies had violated well-established international law.

Genocide, as defined by "customary international law" and U.S. treaties, requires proof that the perpetrator intended to destroy all or part of a national, racial, ethnic or religious group, the court said.

The Ivory Coast workers claimed only that the companies knew DBCP was likely to sterilize them and did not allege an intent to do so, the three-judge panel said. A 1998 treaty known as the Rome Statute defines genocide more broadly to include actions that the defendant knows will destroy part of a population, but that treaty, which also created the International Criminal Court, has been rejected by the United States, the court noted.

The court also said a charge of crimes against humanity can be made only against a government or a "state-like organization," such as a militia that controls certain territory, and does not apply to a business.

Raphael Metzger, the workers' lawyer, said he disagrees with the ruling and will ask the full appeals court to order a new hearing before an 11-judge panel.

"It's a violation of international law to undertake acts which you know will prevent births," Metzger said. He accused the companies of "marketing this poison to the Third World for population control."

Edwin Woodsome, lawyer for Dow Chemical, said the court followed a 2004 U.S. Supreme Court ruling that narrowly defined the serious violations of international law for which foreigners could sue. He also said Dow, one of the manufacturers of DBCP, "is completely blameless, both factually and legally," for the use of the pesticide in Ivory Coast.

The ruling in Abagninin vs. AMVAC can be read at www.ca9.uscourts.gov/ca9/newopinions.nsf.




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