Sunday, October 18, 2009

Further explanations on Kenneth F. McCallion and the Anfal case

By Amy Howard

In response to my previous article, I would like to provide answers for many of the questions it contained. I have obtained copies of the Kurdish case (Aziz et al v. Republic of Iraq et al) and the Gulf War Vets case (Stutts et al v. The DE Dietrich Group et al) through the government ECF site,

The following is a summary of the Aziz et al v. Republic of Iraq et al case:

On April 7, 2009, a complaint was filed by the Kurdish National Congress of North America and five victims of Saddam Hussein’s Anfal campaign, Mohammed Aziz, Meran Salih Abdullah, Mossa Abdullah Mossa, Suthi A. Mossa and Zakia Sadulla, against The Republic of Iraq, VWR International, LLC (formerly known as BDH, LTD), Thermo Fisher Scientific (formerly known as Oxoid Ltd), Alcolac, Inc. and John Does #1-#100. John Does are described as “other individuals and companies, the identities of which are presently unknown, that conspired with and/or aided and abetted the other defendants in the financing, supply and/or development of the WMDs used against the Kurdish people of Iraq.”

The class action complaint was filed in the U.S. District Court in Baltimore, Maryland and assigned to Judge Marvin J. Garbis by the plaintiffs on behalf of themselves and all “Kurdish people who were injured or killed as a result of chemical attacks during Saddam Hussein’s Anfal campaign and their family members and heirs, as well as minor children born with birth defects or diagnosed with genetic defects.”

The plaintiffs are represented by attorneys Jeffrey David Katz, Stanley Todman, and Kenneth F. McCallion, and are divided into two classes, A and B. A class plaintiffs are U.S. citizens and permanent residents and B class Plaintiffs are non-U.S. citizens and foreign nationals. While the legalese varies for the two groups, both are recognized by and entitled to file suit in U.S. Courts.

The corporate defendants are charged with negligence and wrongful conduct, in violation of federal, state and international law, resulting from the sale of chemical warfare and nerve agent precursors as well as laboratory equipment to Saddam Hussein, which he used to manufacture the chemical weapons used against the Kurds. Charges also include violations of national export laws, the Geneva Convention of 1925, and U.N. Security Council Resolutions 582, 588, 596, 612 and 620. The corporate defendants (also charged with aiding and abetting) and the Republic of Iraq are charged with committing acts of international terrorism, crimes against humanity and genocide, among other things.

The stated purpose of the suit is to establish a Court-supervised medical monitoring program for the plaintiffs of both Classes, including the previously-mentioned “Kurdish people who were injured or killed as a result of chemical attacks during Saddam Hussein’s Anfal campaign and their family members and heirs, as well as minor children born with birth defects or diagnosed with genetic defects.” The primary goal is not to seek damages, but rather to provide critical access to regular monitoring and early treatment of diseases and conditions caused by exposure to chemical WMDs. Punitive, compensatory and exemplary damages are also being sought.

Finally, in the complaint issued on April 7, the plaintiffs demanded a jury trial for this case.

Below, I will address the remaining questions for which I now have answers, and points for which I now have clarification, based on the order in which they appear in the previous article.

On August 3, 2009, a notice of dismissal for the claim against VWR International, LLC was filed at the U.S. District Court of Maryland in Baltimore. It was signed by Judge Garbis on August 5. (Not October 9, as was stated in the KNC press release). An Associated Press story dated August 19 reports, “An attorney for five Iraqi expatriates and the Nashville-based Kurdish National Congress said Wednesday that their discussions with VWR International, LLC, of West Chester, Pa., have revealed that VWR is not the successor to a company that allegedly engaged in illegal sales.”

On October 9, 2009, a notice of dismissal for the claim against Thermo Fisher Scientific was filed. It was signed by Judge Garbis on October 14. According to one of the attorneys, “There was no specific discoverable evidence linking those companies to chemical sales to the former Iraqi regime.”

Charges against the Republic of Iraq and Alcolac, Inc. still remain. As for the #1-#100 John Does yet-to-be-named, there do not appear to be any such defendants at this time.

The Stutts v. The DE Dietrich Group class action suit was closed in 2007. On March 22, 2007, the case was terminated and on March 30, the motion to dismiss the claims against all remaining defendants was granted, on the grounds that the court had “no personal jurisdiction”. After all, the remaining defendants were all foreign-based and not subject to any treaties signed by the U.S., U.S. export laws, etc. The only named U.S.-based defendant was none other than VWR International, LLC**. In January 2004, the very first claim in the Stutts case was dismissed. The claim was against VWR International, LLC, and the notice of dismissal was signed by Kenneth F. McCallion. Naturally, this raises the question of the reasoning behind including VWR in the Aziz case, as one of only three corporate defendants.

The following information is taken from the Stutts case and includes the list of the defendants named:

The Full Final and Complete Declaration (FFCD) prepared by the Iraqi government for UNSCOM, identifies the role played by Supplier Defendants and Bank Defendants, and was delivered to Plaintiffs in 2002. (I have not listed all of the f/k/a, a/k/a, etc.) While dates of activity are not listed for the banks, it would be natural to assume that funding was provided prior to or at the time of purchase.

CHEMICAL AND LAB EQUIPMENT SUPPLIERS (Each is listed as having sold chemicals, precursors or equipment to Saddam Hussein's regime in Iraq and used to manufacture chemical warfare agents.)

1) The DE Deitrich Group 1985- selling production equipment, including glass-lined reactors and glass-lined tanks

2) Aventis SA/ Hoescht Aktiengesellschaft 1982- selling chemicals, including approximately ten tons of phosphorus oxychloride (POCL3), a component utilized to make the nerve gas sarin, and 10 tons of O.Chlorobenzaldehyde

Hoescht 1987- sold approximately 200 tons of disopropylamine, another compound

used in nerve gas

3) Fluka Chemie AG 1981-1987-selling chemicals, including thiodyglycol

Fluka Chemie 1987-1989- sold more than 23,000 kilograms of other chemical

4) Georg Fischer AG 1984-1987- selling production equipment

5) Lenhardt Maschinenbau GMBH/Bystronic, Inc. 1984-1987- production equipment, including glass-lined vessels, tanks, condensers and ventilators

6) Sulzer AG 1986-1987- selling production equipment

7) ABB Lummus Global, Inc. 1980's- selling laboratory equipment, including gas chromatography equipment,

8) VWR International, LLC (f/k/a BDH) 1986- selling chemicals

9) Oxoid Ltd. 1986- selling laboratory materials materials

10) Weir Group, LLC 1987- selling production equipment

11) TUI AG (f/k/a Preussag AG…) 1982- selling chemicals, including approximately 30 tons of phosphorus

oxychloride (POCL3), a component in the manufacture of sarin nerve gas

Preussag 1982-1988- selling specialized production equipment

BANKS (Each is listed as a correspondent bank on one or more letters of credit obtained by Saddam's regime in connection with the purchase of goods and/or services that were used to acquire and/or produce chemical weapons of mass destruction.)

1) Dresdner Bank

2) Deutsche Bank

3) ABN Amro Bank, N.V.

4) Gulf International Bank B.S.C.

5) Lloyd's TSB Group PLC

6) National Westminster Bank PLC

7) Barclays PLC

8) Mizuho Financial Group

9) Societe Generale

10) Credit Lyonnais

11) Banque National De Paris

12) DZ Bank

13) Westdeutsch Landesbank AG

14) Bayerische Landesbank

15) Rabobank Group

16) State Bank of India

17) Banca Intesa SPA

18) Banca Nazionale Del Lavoro

19) Banca Di Roma SPA

20) Unicredito Italiano SPA

21) Banca Popolare Di Milano

22) Westpac Banking Corporation

23) Den Norske Bank

24) National Bank of Pakistan

25) Habib Bank LTD

26) Romanian Bank for Foreign Trade

27) Arab Bank PLC

28) Bank of Tokyo-Mitsubishi LTD

29) Sumimoto Mitsui Banking Corporation

30) Fujibank LTD

31) Korea Exchange Bank

32) National Bank of Kuwait

33) Commercial Bank of Kuwait

Let’s move on to the separate line of questioning, which is equally important, as it also potentially affects hundreds of thousands of Kurds, and by extension, the Kurdish nation. It is critically important to determine who knew what and when, as well as who did what and why. Since the KNC press release did not satisfactorily answer those questions, I will ask again (omitting the questions I have now answered).

First and foremost, KNC claimed not to have been made aware that the TFS claim had been dismissed or that Associated Press had reported it. It remains to be disclosed whether they had prior knowledge of the dismissal of the claim against VWR. KNC must clarify whether they did, in fact, have prior knowledge that the two claims were being dropped. If so, what information were they presented with to convince them dismissal was the proper decision? Why would they not publicly acknowledge and explain the actions taken, especially since the case potentially affects and represents hundreds of thousands of people? How much do they really know about the information and evidence contained in the case they brought or about the attorney they hired? Why would they claim they did not know any of this had happened? What incentive would they have? In the event they did not have prior knowledge of or consent to the dismissals, why not? Why were they not more closely following their own case?

The launching of this case was celebrated with great fanfare on the KNC website. The following is the press release issued April 10, 2009.

The Halabja-Anfal Case goes to court

News from the KNC Public Relations Committee

Kurdish National Congress of North America

Inquiries: 403-200-6310

Contact: Brusk Reshvan

The Halabja-Anfal Case goes to court

(Maryland. April 10, 2009). A lawsuit was filed Tuesday, April 7, 2009, against the central government of Iraq and the companies1 that supplied chemical weapons to the government of Saddam Hussein--weapons that were used against the Kurdish people in the Anfal operations, most particularly, the victims of the city of Halabja. The lawsuit was filed in a US federal court in Maryland on behalf of some of the Kurdish victims of the Anfal campaign in Halabja and Anfal operations by Ken McCallion, the principal of a New York law firm that also has represented victims who were exposed to chemical weapons that were being destroyed during the 1991 Persian Gulf War.

"After years of hard work2 we were able to take the grievance of the victims of Halabja and infamous Anfal operations to an international Court3," said Kirmanj Gundi, representative for the Kurdish National Congress of North America, the organization which brought the case to the attention of the law firm of Ken McCallion4.

According to the KNC spokesman, "This lawsuit was not conducted out of a spirit of revenge or animosity. We are simply trying to make sure that justice is served for the victims of the infamous Anfal operations perpetrated by the central government of Iraq against Kurdistan and the city Halabja in particular and that these families receive some restitution for the suffering they have endured."

The KNC stated that its members saw this lawsuit as necessary because the new Iraqi government has not taken any step to address the wrongs of the previous regime and help the victims of systematic campaign of Anfal both in the destruction of the victims' health, the death of loved ones, and the loss of their ability to earn a living5.

Although, the Iraqi government is changed and Saddam's tyrannical regime is no longer there, the new Iraqi government has not shown any political will to address the historic atrocity toward the citizens of Kurdistan-Iraq and has not attempted to provide aid or restitution for the ongoing struggles of its survivors and family members of its victims6.

"One of the goals of the litigation is to establish a fund7 to cover the cost of medical monitoring and compensation for the victims," said Gundi.

"The KNC also wishes to acknowledge that this lawsuit would not have been possible without the sincere support of our fellow Kurds and friends of our people. Therefore, the Kurdish National Congress of North America would like to thank all those who helped in this endeavor," said Gundi.

In response to that release, I would like to point out that:

1) Very few (exactly 3) of the companies that supplied Saddam Hussein with chemicals are named in this suit, not all of the companies.

2) Given the preponderance of evidence of both the crime and suppliers available through countless archives (UN, NGOs, humanitarian/aid organizations, U.S., Iraqi and Kurdish governments, etc.), the progress of the case would not imply that enough “hard work” was done, at least in the preparation of this case. How much “hard work” was done for no one to know how many companies were actually involved in chemical sales and financing? Since Kenneth F. McCallion was obviously chosen by KNC to represent the Kurdish case because of his previous involvement in the Gulf War Vets case, how much "hard work" would have been involved in actually reading the Gulf War Vets case, where it could easily have been determined that it had been dropped without a single conviction?

3) This is a U.S. District Court, not an international court, except in that it isn’t in southern Kurdistan. In fact, it did not even have jurisdiction over the vast majority of defendants named in the Gulf War case- the very same defendants who easily could have been named in this case, if the case were brought to a court with international jurisdiction (see Stutts v. Dietrich Docket, which makes clear that most claims were dropped on grounds of lack of personal jurisdiction. How much “hard work” would it have taken to read the facts of that case?)

4) Kenneth McCallion did represent Gulf War Vets who were exposed to chemical weapons during the 1991 Persian Gulf War. The case against all 44 defendants was closed in 2007 without a single conviction. Perhaps this was not the best choice in legal representation to begin with, or the proper venue for a case of this magnitude.

5) If monetary compensation is the ultimate goal, Iraq is probably the best bet. Too bad it wasn't named as a defendant in the Gulf War Vets' case. Those guys sure could use some help with medical issues too. To be fair, the Iraqi government is the defendant most likely to provide some level of funding for medical monitoring and treatment in the short term. Corporations like to draw these things out indefinitely, hoping the victims will die off before they have to settle. Let me be clear about this- the right suit, brought in the right way before the right court by the right people WILL see these corporate defendants guilty of some or all charges, at which time justice will truly be served and the guilty can play their part in the funding of medical treatment and monitoring, punitive, compensatory and exemplary damages, etc.

6) In looking at this case and how few named plaintiffs were included (they all live within the same 10-square-mile area in Nashville, TN, according to the Aziz v. Republic of Iraq case docket), the unfortunate appearance is that restitution, rather than justice, was the real objective…and restitution for a select few, not all Anfal victims and their heirs and families, as was stated in the case. I am not suggesting that is what I believe, but rather the outward appearance generated by the circumstances surrounding this case. Surely, given enough time and effort (since the case can legally be brought by citizens, permanent residents, non-residents and foreign nationals), thousands of plaintiffs could be gathered for a case with such massive ramifications.

7) If such a fund is established, it is critically important that it be monitored carefully by a neutral observer agreed upon by the (properly-represented) plaintiffs, to prevent it from becoming yet another slush fund for corrupt Kurdish politicians and their friends and families.

Finally, I want to address the attorney(s) actions in the handling of this case. Regarding KNC claims that the attorney(s) did not consult with them or in any way inform them of one (or both) claim dismissals, why would the attorney(s) not consult with the clients prior to dropping their claim? Why was the case ever brought to court to begin with, if there were insufficient evidence or with so few corporate defendants, given that two of the three defendants have already had claims against them involving the same charges dismissed in another case (Stutts v. The DE Dietrich Group)? What accounts for the difference in the number of named defendants between the two cases? Surely it would have been worth throwing some more names into the ring than that. Of course, if the reason is that the Stutts case proved only U.S.-based companies were within the jurisdiction of a U.S. court, would it not have been worth launching a broader claim in the appropriate court? In the event the attorney(s) did act without prior knowledge or consent from the clients, what incentive would they have?

Kenneth McCallion practices law in New York and both Stanley Todman and Jeffrey David Katz practice in Maryland. According to Maryland Bar Association’s Rules of Professional Conduct (similar rules exist in New York):

Rule 1.4 Communication

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(f), is required by these Rules;

(2) keep the client reasonably informed about the status of the matter;

(3) promptly comply with reasonable requests for information; and

(4) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers' Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

While I have found the answers to some of the questions addressed in my previous article, through extensive research, many remain and new ones have now been raised. Ultimately, does this lawsuit do justice to the enormity of the Anfal campaign and genocide against the Kurdish nation?


**It should be noted that Oxoid Ltd, named in the Stutts case, is part of Thermo Fisher Scientific, has a Thermo Scientific email address and is listed on the New York Stock Exchange as TMO (Thermo Fisher). I have not yet found the date the claim was dismissed against Oxoid Ltd or who signed it, but it again raises the question of the reasoning behind including Thermo Fisher in the Aziz case, as the second of only three corporate defendants.