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October 15, 2009
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KNCNA and Kenneth F. McCallion Owe Anfal Victims an Explanation
Kurdishaspect.com - By Amy Howard
Something big happened last Friday. If it hadn't been for the eye of a watchful Kurd, it may very well have gone completely unnoticed. According to a brief Associated Press story published Tuesday, another key claim in a major lawsuit filed by Kurdish National Congress of North America and five unnamed Anfal victims was unceremoniously dropped in a Maryland federal court on Friday, October 9, 2009.
This lawsuit was filed on behalf of KNCNA and the five unnamed plaintiffs by Kenneth F. McCallion of the New York law firm McCallion and Associates, LLP, on April 7, 2009. The case sought class certification for an estimated 100,000 Kurds, alleging that three U.S.-based chemical and laboratory supply companies sold Saddam Hussein chemicals and components that were later utilized in the development of Iraq’s chemical weapons arsenal, and were ultimately used against the Kurds during the Anfal campaign (specifically, Halabja). The Republic of Iraq was also named as a defendant.
According to the allegations, in addition to the thousands killed by these chemical attacks, countless others suffered and continue to suffer from chronic ailments and disabilities. The lawsuit sought to establish a fund for the ongoing medical treatment and monitoring of all Kurds who were exposed to the chemical agents during the Anfal campaign and their surviving relatives.
The companies in the suit included Thermo Fisher Scientific, based in Waltham, Massachusetts (annual profit of $10.5 billion), Alcolac, Inc. (formerly Alcolac, currently based in Cranberry, New Jersey) and VWR International, LLC, based in West Chester, Pennsylvania (annual profit of $3.7 billion).
On August 19, Associated Press reported that attorney Kenneth McCallion had determined VWR International, LLC not to be a successor to BDH, the company that is claimed to have originally been engaged in the illegal sales, and proceeded to drop the claim against them. This directly contradicts multiple references in one of Mr. McCallion’s own ongoing class action suits, Stutts v. The DE Deitrich Group, et al., to VWR as the clear successor of BDH. No mention was made by KNCNA or the plaintiffs about this action.
On October 13, Associated Press reported that KNCNA and five Iraqi Kurd expatriates (no mention of the attorney in this one) filed a dismissal notice to drop the claim against Thermo Fisher Scientific, Inc. with the U.S. District Court in Baltimore on Friday, October 9, on the grounds that there was insufficient evidence. No further explanation was given, nor was any mention was made by KNCNA or the plaintiffs about this action.
As for the one remaining defendant in this case, Alcolac, Inc., the company was purchased in 1989 by Rhode-Poulenc, which in turn spun off its chemical operations under Rhodia in 1998. While Rhodia holds Alcolac Inc.’s assets, company spokesman David Klucsik pointed out that Alcolac was not acquired until 1989, thus no one at either Rhode-Poulenc or Rhodia could have had personal knowledge of any such transactions. Alcolac did plead guilty on one count of export violations regarding shipments of thiodiglycol (mustard gas component) to Iran in 1988, and reports by U.N. weapons inspectors confirmed similar shipments to Iraq in a 1992 U.S.-Iraq export policy hearing. However, current ownership denies any responsibility for their predecessors’ activities.
Interestingly enough, Dutch authorities conducted an 18 month investigation of Alcolac, Inc. in 2004-2005, while building their case against Dutch chemical merchant Frans Van Anraat. According to the Washington Post, it was common knowledge among U.S. officials that Alcolac was Van Anraat’s primary supplier of thiodiglycol, which he then sold directly to Saddam Hussein, even after evidence surfaced that the chemical was being used against Kurds. Frans Van Anraat was found guilty of war crimes at The Hague on December 23, 2005. Still, given the number of times that Alcolac has restructured or changed hands since 1988, it seems unlikely they will ever be held directly accountable.
Now, here’s where it gets interesting. According to CNN and the McCallion and Associates’ website, an ongoing class action lawsuit (mentioned previously in this article as Stutts v. The DE Deitrich Group, et al.) is being pursued (in coordination with The Law Office of Curtis V. Trinko, Pitts & Associates and Maloney, Martin & Mitchell LLP as class counsel) on behalf of Gulf War veterans. The exact same allegations are being levelled against companies that supplied equipment or chemical components to Saddam Hussein, this time used against U.S. soldiers in the 1991 Gulf War. Soldiers seem to be suffering from similar chronic illnesses as a result of chemical exposure. (It must be noted that Kurds of Halabja and the Anfal campaign were exposed deliberately and directly to large quantities of the chemical agents, while U.S. troops were generally exposed second-hand and were provided with some form of protection, however ineffective.) Nonetheless, this suit includes 11 (not 3) chemical and laboratory supply companies, but also 33 banks who provided letters of credit to Saddam, with which he purchased the chemical components and laboratory equipment.
Perhaps most importantly, KNCNA claims that last Friday’s filing of the dismissal notice, effectively dropping the claim against Thermo Fisher Scientific, was done without their prior knowledge or consent, by Mr. McCallion. They were only made aware of this action when a link to the Associated Press story was forwarded to them. Does the same apply for the other five plaintiffs? (Now might be a good time to ask who, exactly, are the other five plaintiffs?)What about the 100,000 Kurds seeking class action status?
Allegedly, and only after being confronted today for an explanation, the attorney was kind enough to send an email to KNCNA officials, stating that he had dismissed the claim on account of insufficient evidence. Was the plan simply to not tell anyone and let this fade into history? Are we even being told the truth?
One has to ask that question, given the fact that this happened before in August, when the claim against VWR International, LLC was dropped. Was KNCNA informed before or after that action was taken by the attorney? The other five plaintiffs? The 100,000 seeking class action status? I find no evidence that any of this was ever acknowledged by anyone other than the Associated Press, a few media outlets and, of course, the defendants.
That leaves two parties owing immediate and honest explanation- KNCNA and attorney Kenneth F. McCallion.
KNCNA 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? If they truly did not know about or consent to the dismissals, why? Why were they not more closely following their own case? Again, who are the additional five plaintiffs and what role, if any, did they play in any of this?
Why would Kenneth McCallion not consult with his clients prior to dropping their claim? Why was the case ever brought to court to begin with, if there were insufficient evidence? Why are the claims being dropped without ever being heard in court? Were Kurds not granted class action status for this case? Why does Mr. McCallion continue to build a class action suit on behalf of the Gulf War veterans containing the exact same allegations, while the Kurdish case is secretly and quietly being allowed to die? (Surely mustard, sarin, vx and nerve gas affect Kurds and U.S. soldiers equally.)What accounts for the difference in the number of named defendants between the two cases? Is it suspected that there were completely different suppliers and financiers in 1988 and 1991? In the event he took these actions without prior knowledge or consent from his clients, has a law been violated? What incentive would he have? Can he or should he be terminated as legal counsel by the plaintiffs in this case and/or disbarred?
To my knowledge, this is the only pending litigation being brought by Kurds against potential suppliers of the chemical weapons used in the genocide waged against them. As such, it has huge ramifications and simply cannot be handled in the shadows of darkness, or by people whose intent is less than sincere. Generations of Kurds are likely to live with the consequences, positive or negative, of today’s legal actions, and as more time passes and companies restructure or change ownership, it will become more difficult to successfully prosecute these cases. Holding perpetrators accountable now will help ensure future generations will not suffer the same fate. Furthermore, any legal action or decision on this level will inevitably become part of an eventual case before an international court to determine genocide against Kurds, so it is critical for each and every step to be taken seriously and handled with utmost professionalism by qualified and competent people. I only hope it is not too late.
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