The Fourth Circuit Court of Appeals ruled this week that a chemical company accused of selling chemical weapons to Saddam Hussein's regime in the '80s cannot be held liable under the Torture Victim Protection Act (TVPA).
In the 1980s, the Republic of Iraq, then under Hussein's dictatorial control, was embroiled in a long-term armed conflict with Iran. International news media widely reported - and the United States government explicitly condemned - the Iraqi regime's large-scale use of mustard gas and other chemical weapons against Iran.
Simultaneously, Iraq launched chemical weapon attacks against the Kurds in northern Iraq, whom Hussein accused of collaborating with Iran. In April 1984, the U.N. Secretary General released a report confirming that mustard gas and chemical weapons had been used in the Iraq-Iran war. The Australia Group, an international coalition of governments, responded by imposing licensing restrictions on the export of chemicals used in chemical weapons.
Alcolac sells thiodiglycol (TDG), a chemical component of mustard gas. In February 1989, Alcolac pleaded guilty to a single count of violating the Export Administration Actin connection with a late '80s TDG sale to a shell corporation. During Alcolac's plea hearing, the government also proffered facts relating to a TDG sale that the government believed ultimately reached Iraq, but Alcolac was not prosecuted for that sale.
The Appellants, individuals of Kurdish decent who are either victims of mustard gas attacks or family members of deceased victims, sued Alcolac under the TVPA claiming that Alcolac sold TDG to the Hussein regime, which used the chemical in mustard gas attacks on the Appellants.
The Fourth Circuit Court of Appeals affirmed the district court's dismissal of the case, finding that the TVPA excludes corporations from liability. The circuit further concluded that, while the Alien Tort Statute (ATS) imposes liability for aiding and abetting violations of international law, the ATS only applies to purposeful conduct, which the Appellants failed to prove.