Plaintiffs are a proposed class of military servicemen or civilian employees of United States Department of Defense contractors who were deployed in the Persian Gulf region during the 1991 Gulf War. They seek relief for damages sustained as a result of exposure to toxic agents contained in chemical weapons developed or otherwise obtained by the Iraq government and ultimately detonated by the United States and its allies during the Gulf War conflict. Plaintiffs assert causes of action against two classes of defendants: the “Supplier Defendants,” foreign corporations that allegedly sold chemical precursors and manufacturing equipment to Iraq that was used to develop the chemical weapons to which plaintiffs were exposed, and the “Bank Defendants,” foreign corporations that acted as correspondent banks under letters of credit issued in favor of the Supplier Defendants to support the sale of goods and services by the Supplier Defendants to Iraq….
Plaintiffs assert claims in the complaint under the Geneva Convention of 1925 … , United Nations Security Council Resolutions 582, 588, 596, 612 and 620, and customary international law…. They allege that the prohibition on the use of chemical weapons in warfare since the Convention in 1925 constitutes a peremptory or jus cogens norm of international law…. Moreover, they allege that the “development, manufacture and stockpiling of chemical weapons” is prohibited by customary international law….
The plaintiffs allege that Saddam Hussein violated the Convention, U.N. Resolutions and customary international law by wielding chemical weapons against Iraqi citizens “during peacetime and against combatants during armed conflicts” and that the Bank Defendants knew or should have known about these acts. Plaintiffs allege that the Bank Defendants violated international laws “and/or aided and abetted violations” of those laws by “assisting, facilitating and cooperating with the Iraqi regime of Saddam Hussein in efforts to develop chemical weapons of mass destruction by providing bank services under letters of credit related to the sale of goods and services that were necessary to produce, obtain and stockpile chemical weapons of mass destruction.” Plaintiffs further allege that the Bank Defendants’ violation of the international laws “was the producing and proximate cause” of plaintiffs’ injuries.
As an initial matter, the Court must determine whether the sources of international law cited in the complaint provide private rights of action. In order for an international treaty such as the Geneva Convention of 1925 to provide for a private right of action it must be “self-executing,” meaning that a private right of action is explicitly provided for in the treaty or the treaty has been implemented by a U.S. federal statute…. The Bank Defendants argue that the Geneva Convention is not self-executing and therefore does not provide plaintiffs with a private right of action. Plaintiffs concede that the Convention is non-self-executing, but argue that export prohibitions on chemical weapons enacted by the members of the Australia Group and some governments’ efforts to enforce laws against supplying countries such as Iraq with materials to manufacture chemical weapons constitute “implementing action by the political branches of government.” Plaintiffs cite no authority supporting their position that these are actions taken by the political branches of government to implement the Geneva Convention. Moreover, courts hold that the Geneva Conventions are not self-executing treaties and routinely reject private claims brought under them. See, e.g., Amerada Hess…. Accordingly, since the Geneva Convention is not self-executing and Congress has not passed implementing legislation, plaintiffs have no private right of action under the Convention.
Plaintiffs also assert a cause of action under U.N. Security Council Resolutions 582, 588, 596, 612 and 620. The Bank Defendants argue that those Resolutions do not provide a private cause of action. Plaintiffs do not refer to, and the Court has not found, any case law regarding whether the particular Resolutions which plaintiffs cite are self-executing or provide a private right of action….
Plaintiffs assert a cause of action under customary international law…. As an initial matter, defendants contend that customary international law does not provide plaintiffs with a private right of action…. Even if customary international law did provide a private right of action against defendants, plaintiffs’ allegations would be inadequate to state a claim against the Bank Defendants…. Although plaintiffs allege that the prohibition against “the development, manufacture and stockpiling of chemical weapons” is a rule of customary international law, the focus of their arguments and the evidence they rely upon is instead that customary international law restrains the use of chemical weapons…. This contention that Saddam Hussein violated the Geneva Convention does not suffice to state a claim against the Bank Defendants. The only allegations plaintiffs make regarding the Bank Defendants’ conduct is that they provided letters of credit in favor of the Supplier Defendants. Despite their attempt to cast the Bank Defendants as having played “a necessary role in assisting Iraq to develop the chemical weapons that caused the injuries of plaintiffs”, plaintiffs insufficiently allege that providing letters of credit violates the rule of international law–use of chemical weapons–which their evidence supports.
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