The
Adjudication of the Tokyo District Court
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[Hakkirikai-Japanese
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Court Judgment on Compensation Claims for Human Losses and Damages
I. Claims Based on International Laws
I-1 Concerning General Principles of International Laws
Historically,
international laws have developed to govern legal relationships among states.
This means international laws are essentially binding on states, which are
presupposed to be the primary bodies on which the legal capacity to exercise
international laws rests. In other words, individual people constituting these
states basically cannot exercise the rights or undertake the obligations
provided by international laws. In the domain of international laws, damages
inflicted upon individuals by any states other than their own are supposed to
be dealt with by the states they belong to in the acts of diplomatic
protection. As such, private individuals are, generally speaking, not supposed
to exercise against foreign countries their rights provided by international
laws. Not that the court denies the possibility for any changes in the nature
of international laws reflecting, for instance, change of the times; in fact
some international laws now have clear provisions that grant
directly-exercisable rights to individuals. However, it is our understanding
that if private individuals are to be empowered to directly exercise their
rights against states other than their own, there would have to be some international
rules that specifically approve of such practices.
1-2
Concerning International Customary Laws
International
customary laws are generally understood as a set of "international customs
that bear out prevailing customary practices accepted by states as the
law" (See Status of the International Court of Justice, Article 38-b).
These laws could only come into existence when there are certain customary
practices in the international community established through long and habitual
exercises by states, which, with a firm conviction, take these practices as
legal obligations. Therefore, it seems reasonable to say that we can only
acknowledge the establishment of an international customary law when a great
majority of states have been exercising a similar practice, repeatedly and
continuously, so much so that it has become a routine, standard and common
practice in the international community and that the vast majority of the
states, including powerful ones, have been exercising the practice with a firm
conviction that they are fulfilling legal obligations provided by the
international law
(1) Plaintiffs argue that by the outbreak of the Second
World War, it had already been established as an international customary law
that states are responsible for the damages inflicted upon individuals by any
members of their military organizations who committed those actions
corresponding to the "crimes against humanity" provided by the Hague
Convention Respecting the Law and Customs of War on Land of 1907 (Hague
Convention of War on Land) and its supplementary regulations (Hague Regulations
of War on Land). Accordingly, states are obliged to make reparation or
compensation to the victims.
(2) Hague Conventions and Regulations of
War on Land
Japan on 6
November 1911 ratified the Hague Conventions and Regulations of War on Land,
which then became effective for Japan on 12 February 1912. It is clear that
Article 3 of the Hague Convention makes signatory states responsible to
compensate for damages of individuals caused by their military members during
the war they wage in violation of the rules provided by the Convention.
<Quoted from Article 3 of the Convention and Article 46-1 of the Hague
Regulations>.
However,
judging from the wording and the purpose of the Convention, the intention of
the provision seems to tie down militaries and their personnel to the Hague
regulations through laying warring states under the responsibility of
compensating for any damages inflicted upon individuals by their military
members in violation of the Convention, and nothing more -- and not that far as
to protect the right of those individuals who were victimized. Also, both the
Hague Convention and Regulations have no provisions indicating, or even
suggesting, the way for victimized individuals to exercise their right on their
own or recognizing the rights for individuals to do so.
Given
these, we do not agree with the view that Article 3 of the Hague Convention of
War of Land recognizes the right of victimized individuals to make compensation
claim on their own against the states the aggressors belong to. Although the
plaintiffs' compensation claim based on the international customary law
embodied by the Hague Convention of War on Land presupposes that Article 3 of
the Convention acknowledges the right of victimized individuals to claim
compensation, their claim is rejected because the Article 3 cannot be
interpreted to be recognizing the right of victimized individuals to make claim
for compensation, as discussed above.
(3) The
Charter of Nuremberg International Military Tribunal, etc.
The
concept of "crimes against humanity" sprouted in the 1931 Anti-war
International Conference in Paris. The first ever codification of the
"crime against humanity" appeared in Article 6 of the Charger of
Nuremberg International Military Tribunal, which provides the following acts as
the crimes coming within the jurisdiction of the Tribunal: (a) crimes against
peace, (b) war crimes, (c) crimes against humanity, and involvement in a
conspiracy to commit any of the foregoing crimes.< quote: Article 6. The
following acts, or any of them, are crimes coming within the jurisdiction of
the Tribunal for which there shall be individual responsibility: (a) CRIMES
AGAINST PEACE$B!D!D(B (b) WAR CRIMES$B!D!D(B. (c)CRIMES AGAINST HUMANITY$B!D!D(B. Leaders,
organizers, instigators and accomplices participating in the formulation or execution
of a common plan or conspiracy to commit any of the foregoing crimes are
responsible for all acts performed by any persons in execution of such
plan..>Also, Article 5 of the Charter of the International Military Tribunal
for the Far East reads as follows. "The Tribunal shall have the power to
try and punish Far Eastern war criminals who as individuals or as members of
organizations are charged with offenses which include Crimes against Peace. The
following acts, or any of them, are crimes coming within the jurisdiction of
the Tribunal for which there shall be individual responsibility: (a)
Crimes against Peace$B!D!D(B (b) Conventional War Crimes$B!D!D(B.. (c) Crimes against
Humanity: Namely, murder, extermination, enslavement, deportation, and other
inhumane acts committed against any civilian population, before or during the
war, or persecutions on political or racial grounds in execution of or in
connection with any crime within the jurisdiction of the Tribunal, whether or
not in violation of the domestic law of the country where perpetrated. Leaders,
organizers, instigators and accomplices participating in the formulation or
execution of a common plan or conspiracy to commit any of the foregoing crimes
are responsible for all acts performed by any person in execution of such
plans.
"Crimes
to be dealt with in these Tribunals were, however, provided for the purpose of
exposing criminal responsibilities of those individuals who committed serious
war crimes during the WWII and giving them punishment for that reason. Judging
from the wordings of the aforementioned articles, the "crime against
humanity" was brought out to define the elements constituting the war
crime rather than to punish individuals.
If so,
these provisions are only laying signatory states under the obligation of
letting criminated individuals to serve the sentences given by the
International Court and nothing beyond and hoinh not that far as to provide the
ground of civil liability of these states for the crimes committed by their
nationals.
Therefore,
even assuming that both Article 6 of the Carter of Nuremberg International
Military Tribunal and Article 5 of the Charter of International Military
Tribunal for the Far East had been established as international customary laws
by the Second World War, that would not lead to the conclusion that the right
of victims of "crimes against humanity" to make compensation claims
had been recognized.
(4) About
compensation claims based on the Slavery Convention and international customary
laws based on the convention.
The
plaintiffs argue that they have the right to claim compensation against the
defendant on the ground that those Koreans made to serve as soldiers, gunzoku
or military comfort women were put under slavery or quasi-slavery conditions by
the state of Japan, which violated their rights to be free from such
conditions.
The League
of Nations in 1926 adopted the Slavery Convention, which came to effect in 1927
(although Japan did not ratify the convention). The Slavery Convention mandates
the signatory states to realize the total abolition of slavery system, but it
does not say that victimized individuals are capable of brining the accused
states to account, nor define concrete conditions of enslavement for which
victims should be compensated, nor have any provisions that could be
interpreted that victimized individuals are entitled to directly claim
compensations against the states to which the aggressors belong. Also, we have
found no evidences sufficient to acknowledge any case examples of a state's making
compensations directly to enslaved individuals based on the Slavery Convention
since its enactment.
For these,
we have rejected the plaintiff's argument that based on the Slavery Convention
and related international customary laws, victimized individuals are entitled
to directly claim compensations against the states that violated these
regulations.
(5)
Compensation claims based on the Forced Labor Convention and related
international customary laws.
The
plaintiffs argue that they are entitled to claim compensations against the
defendant because those Koreans made to serve as soldiers, gunzoku or ianfu
were put by the state of Japan under forced labor, which had been prohibited by
the Forced Labor Convention.
The
Convention (No. 29) Concerning Forced Labor was adopted at the International
Labor Organization's General Assembly in 1930 and ratified by Japan in 1932.
The Forced Labor Convention has mandated the signatory states to eliminate
forced or compulsory labor of all forms as soon as possible. Even during the
transitional period, forced labor can only be admitted for the public purpose
(Article 1). It also requires the signatory states, or their competent
authorities, to abolish or restrict the imposition of forced labor for the
benefit of private individuals, companies or associations (Article 4, etc.). It
thus provides the obligation exclusively of the states. Also, the convention
does not lay down the right of the individuals who were put under forced labor
in violation of the Convention to claim compensations against the violating
states, nor have any provisions that can be interpreted as empowering
victimized individuals to directly claim compensations against the offending
states. In addition, we do not find any evidences sufficient to acknowledge the
case examples of states' making compensations directly to enslaved individuals
based on the aforementioned Convention ever since the enactment of it.
For these
reasons, we reject the plaintiff's argument that based on the Forced Labor
Convention and international customary laws based on it, victimized individuals
are entitled to directly claim compensations against the states that violated
these regulations.
(6)
Compensation claims based on the International Convention for the Suppression
of the Traffic in Women and Children
The
ianfu-related plaintiffs argue that the defendant set up and managed a military
brothel system. As this violated the international laws stemming from the
International Convention for the Suppression of the Traffic in Women and
Children, they argue, they have right to claim for compensation.
In 1925,
Japan signed in the International Convention for the Suppression of the Traffic
in Women and Children. The Convention provided that the signatory states agree
to punish with criminal penalty any person who exploits the prostitution of
women under age, even with the consent of that persons (Article 1 and 2) and to
promise to take legislative measures if existing domestic law is inadequate
(Article 3).
The
convention, thus, basically mandates signatory sates to punish anybody who
committed exploitation of prostitution and implement necessary legislations.
The convention does not provide the right of victimized individuals to claim
compensation against the state that violated the treaty, nor has any article
that would provide the basis for the victimized individuals to become entitled
to directly make compensation claims against the offending state. In addition,
there seems not enough evidences presented so that we can acknowledge any case
examples of states' making compensations directly to victimized individuals
based on the aforementioned convention ever since the enactment of it.
For these,
we decline the plaintiffs' argument that based on the aforementioned convention
and ensuing international customary laws, victimized individuals are entitled
to directly claim compensations against the states that violated these
regulations.
(7) About
legislative examples in other countries
The
plaintiffs argue that there are plenty precedents of adoption and enforcement
of the legal principle that private individuals who suffered from the violation
of the international human rights law by military personnel have the right to
claim compensation against the state, whose military the offender(s) belonged
to. For examples, they cite post-Second World War legislations for postwar
compensations implemented in Federal Republic of Germany (former West Germany),
Italy, the United States and Canada.
However,
of the cited legislations, only the Federal Law for the Compensation of the
Victims of the National Socialist Persecution, enacted in the Federal Republic
of Germany, refers to "crimes against humanity," while other
legislative examples have no such references. Given this, these examples do not
seem sufficient to establish that existence of the international customary
practice that allows those individuals who were victimized by the offence of
the international human right laws to claim compensation against the states to
which the aggressor(s) belong.
(8) About
Several Reports Submitted to the UN Commissions of Human Rights
The U.N.
Human Rights Commission's Special Rapporteur Radhika Coomarasamy in her report
concerning the issue of the military sexual slavery system during wartime
submitted in 1996 after visiting South Korea and Japan to collect information
from the people directly involved, assessed that the ianjo (military
brothels) system set up by Japan's now-defunct military violated the obligation
provided by the international law and recommended the Japanese government to
acknowledge that the ianjo system breached the obligations provided by
the international law and take a set of actions, including accepting the legal
liability for the offending acts. Also, Gay J McDougall, a special rapporteur
of the U.N. Human Rights Commission's Sub-Commission on Prevention of
Discrimination and Protection of Minorities, in her final report on the
systematical violence against women in the war situations, including rape and
sexual slavery, or similar practices, submitted in 1998, argues that the forced
prostitution in ianjo run by Japanese imperial army was practically rape
and sexual slavery and that the ianjo system violated the international
customary law, for which the government of Japan has legal liability to
compensate to former comfort women. The report recommends the Japanese
government to report to the Secretary General of the United Nations on the
progress in its effort to identify former comfort women to pay compensation and
prosecuting the aggressors.
However,
both these reports are void of any concrete case examples of compensation
claims directly made by private individuals suffered from serious violation of
human rights against the offending states and then accepted by the accused
states with the payment of compensations directly to the victims. As such, even
with these UN reports, we cannot accept the argument that by the time of the
Second World War, the legal liability of states to pay compensation to
individuals, as recommended in these reports, had already been established as
an international customary law.
(9) Given
these, the court sees no need for further examination of other points to
conclude that there is no valid grounds for the compensation claims made by the
plaintiffs on the basis of "crimes against humanity" and the
violation of other international laws.
I-4. About
Compensation Claims Based on the Claim for Restitution in Integrum
The
plaintiffs argue that the defendant was obligated to carry out the recovery of
Korean people from slavery conditions as called for in the Cairo Declaration
upon the acceptance of the Potsdam Declaration --Article 8 of which mandates
the implementation of provisions of the Cairo Declaration -- and the conclusion
of San Francisco Peace Treaty, Article 2-(a) of which reads "Japan
recognizing the independence of Korea, renounces all right, title and claim to
Korea, including the islands of Quelpart, Port Hamilton and Dagele."
Therefore, the plaintiffs argue, the defendant is responsible to compensate to
Korean former soldiers, gunzoku and their bereaved families and former
military comfort women for their physical and moral damages. (Note that
although the plaintiffs call this right "claim for restitution in
integration based on the Constitution --compensation claim based on the
preamble of the Constitution of Japan and the acceptance of the Potsdam
Proclamation" it should be more appropriately classified as a claim based
on the international law, rather than domestic laws, because the content really
is solely based on Japan's acceptance of the Potsdam Proclamation and the
conclusion of the San Francisco Peace Treaty.)
The Cairo
Declaration was an outcome of the top-level meeting in 1943 of three major
players (the US, the UK and China) of the Allied camp, which had been waging
war against Japan, to discuss on the conditions of peace. It reads "It is
their (the three Great Allies) purpose that Japan shall be stripped of all the
islands in the Pacific which she has seized or occupied since the beginning of
the First World War in 1914, and that all the territories Japan has stolen from
the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored
to the Republic of China. Japan will also be expelled from all other
territories, which she has taken by violence and greed. The aforesaid three
great powers, mindful of the enslavement of the people of Korea, are determined
that in due course Korea shall become free and independent."
However, the purpose
and wording of the Cairo Declaration, especially the part cited above, indicate
that the declaration was a statement of the basic policy of the three Allied
countries mainly on the treatment of the territories annexed by Japan, out of
various conditions involved in the peace making with Japan. The manifestation
of their intention to give independence to Korea should be understood in this
context and cannot be stretched as to interpret that it laid the defendant
under the obligation to make compensation or reparation to individual Koreans.
Given this, the scope of Article 8 of the Potsdam Proclamation based on the
Cairo declaration should be understood as to be limited to require the
defendant to implement the basic policy proclaimed in Cairo by the three Allies
concerning the territories annexed by Japan, in other words, the independence
of Korea. In the same vain, Article 2-(a) of the San Francisco Peace treaty
should be interpreted as to be limited to an agreement among the signatories
over the independence of Korea, etc.
Accordingly,
we have concluded that the case made by the plaintiff has no legal ground since
the treaties and declarations cited above do not make the reason for the
defendant's liability for compensation as claimed by the plaintiffs.
I-5. About
Compensation Claim Based on Principle of Equality in International Law
The plaintiffs argue
that the treatment of non-nationals based on the nationality clauses appended
to the Act for the Relief of War Disabled and Bereaved Families of War Dead
(hereinafter the Relief Act) and the Veteran Pension Act is violating Article
2-1 and 2-2 of the International Covenant on Economic, Social and Cultural
Rights (Covenant A) and Article 2-1 and Article 26 of the International
Covenant on Civil and Political Rights (Covenant B) and for this reason they
claim for compensation against the defendant. Japan ratified both Covenant A
and B in 1979 and domestically enacted them on 21 September of the same year.
Article 2-1 of Covenant A reads "Each State Party to the present Covenant
undertakes to take steps, individually and through international assistance and
co-operation, especially economic and technical, to the maximum of its
available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative measures. General
comment on its implementation" and Article 2-2 provides "The States
Parties to the present Covenant undertake to guarantee that the rights
enunciated in the present Covenant will be exercised without discrimination of
any kind such as race, color, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status."
Also, Article 2-1 of Covenant B reads "Each State Party to the present
Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, color, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status" and Article 26 "All persons are equal before
the law and are entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination
on any ground such as race, color, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status."
Further to the point,
while the court recognizes the fact that in response to an appeal made by French
military veterans from the former French colony Senegal who acquired Senegalese
nationality upon its independence, the UN Commission on Human Rights on 3 April
1989 adopted the view that France was responsible to take effective measures to
compensate the Senegalese veterans for the gap in their veteran pension
payments, which were smaller than the amounts received by those who remained
French nationals, on the basis that such a treatment was in violation of
Article 26 of the Covenant B. However, the adopted view concerns to those
Senegalese war veterans who served for the French military as French nationals
and had been receiving pension even after the independence of the state of
Senegal as had been the case with their French peers. The constituting factors
of the issue seem thus essentially different from those with our current case,
which is about people in the areas that became independent as a result of
so-called "post-war settlement," whose treatment has been
specifically laid down in the San Francisco Peace Treaty.
This reason alone is enough to decline
the claim made by the plaintiffs for the lack of solid reasoning without
examining other aspects.
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II.
Claims Based on Domestic Laws
II-1.
Compensation Claims Based on Article 29-3 of Constitution of Japan
The plaintiffs argue
that Article 29-3 of the Constitution of Japan provides the ground to claim
compensation against the state if it restricted the life, body and freedom of
certain individuals beyond the acceptable limit supposed in general social life
by forcing them to endure special sacrifice. They argue that they are entitled
to make compensation claims based on this Constitutional provision because they
themselves, or their husbands, fathers and brothers, were called out by force
to the war fronts by the state of Japan to serve as soldiers or gunzoku
or ianfu, which deprived them of lives, bodies and freedom, including
sexual freedom.
However, the
Constitution of Japan, promulgated on 3 November 1946, came to force six months
later on 3 May 1947 and has no provision for retrospective applications. It is therefore
not applicable to the deeds conducted before the date of its enactment. As it
is obvious that the alleged deeds of the defendant took place before the
enactment of the Constitution of Japan, there seems no place, even on an
analogical basis, to apply Article 29-3 of the Constitution to the alleged
deeds.
Accordingly, the
plaintiffs' claim based on this case is declined for the lack of ground and no
further examinations on other factors seem necessary.
II-2.
Compensation Claims Based on Principle of Equality of Constitution of Japan
1. Of the plaintiffs,
former soldiers and gunzoku of the Japanese military argue that they
have been discriminated against because of their nationality in the application
of the state pension for war veterans and the relief scheme to help out war
disabled and bereaved families of the war dead. The Act for the Relief of War
Disabled and Bereaved Families of the War Dead excludes individuals who are not
governed by the Japanese family registration law (Supplementary Provision 2)
and rules that eligibility for the disablement pension will lapse upon the loss
of Japanese nationality (Article 14-2-2). Similarly, the Pension Act lays it
down that eligibility will lapse upon the loss of Japanese nationality (Article
9-1-3. The provisions will be referred to as "nationality clauses"
hereafter). The nationality clauses are, the plaintiffs argue, going against
both the spirit of state compensation, on which these two legislations are
based, and the principle of equality before the law provided in Article 14 of
the Constitution of Japan. As they have been discriminated against in violation
of the constitutional principle of equality, the plaintiffs argue, they have
the right to rectify the discriminating condition and receive the allowance on
par with their privileged counterparts.
2.Applicability
of the nationality clause in Article 14-1of the Constitution
(1) The purpose of the
principle of equality before the law provided in Article 14-1 of the
Constitution of Japan is to prohibit any discrimination that lacks legitimate
reasons. It is not a violation of the rule, thus, to draw a distinction in
legal treatments of individuals based on various factual differences in their
economic, social and other conditions as far as there are legitimate reasons.
(2) Until
the end of the Pacific War, the state provided annuity to civil workers and
military personnel or their bereaved families, if they were injured or taken
ill during the service and thereby became disabled or dead, based on the pension
law. After the war, payment of such pension and benefits to former military
personnel and bereaved families was suspended, except for those handicapped by
high levels of disability, by the Ordinance No 68 in 1946, following the order
of the General Headquarters of the Allied Forces (GHQ), and then abolished upon
the revision of the pension law in the same year.
As provided in Article
2-(a) of the San Francisco Peace Treaty, enacted on 28 April 1952, Japan
acknowledged the independence of Korea and abandoned all the interests, title
sand claims concerning Quelpart, Port Hamilton and Dagelet Islands. Also,
Article 4-(a) of the treaty provides that claims made by the government and
residents of these separated areas against the state of Japan and its nationals
are to be settled by special agreements between the governments of Japan and
these areas.
On
30 April in 1952, Japanese government implemented the Relief Act to help out
the war disabled and bereaved families of the war dead, which was applied retrospectively
to the January of the same year. However, as discussed earlier, the application
was limited to Japanese nationals. The government also resumed pension payment
to war veterans and bereaved families of the war dead through the revision of
the Pension Act on 1 August 1953. By that time, people from the Korean
Peninsula and Taiwan had lost Japanese nationality upon the conclusion of the
San Francisco Peace Treaty and thereby left out of the eligibility for the
allowance based on Article 9-1-3 of the Pension Act.
(3) During
the emergency period of the Pacific War through to post-war settlements, in
which the survival of the state was at stake, every Japanese had to endure,
more or less, some sacrifice of their lives, bodies and properties. These sacrifices
were equally distributed to all the population as the cost of war.
Compensations for these war losses are something beyond the scope of
Constitutional expectations. Accordingly, the question as to whether or not
such compensations are necessary and, if they are, how they be
institutionalized should be interpreted to have been committed to the
discretionary judgments of the legislature, taking into consideration the state
finance, social and economic conditions and documents on details and degrees of
the damages for which compensation claims are made (See the 27 November 1968
ruling of the Grand Bench of the Supreme Court in Minshu --civil case
law report-- vol. 22-12 p 2808 and the 13 March 1997 ruling of the first Petty
Bench of the Supreme Court in Minshu report Vol. 51-3 p 1223). Losses stemming from the casualties
during military services, which we have been examining, are nothing but a part
of the war cost and sacrifice as described above.
Another
aspect is the character of these allowances. Allowances of the Pension Act are
not just the compensation for damages in the ability to earn livings but also a
kind of social welfare of former state employees and their bereaved families.
Similarly, the Relief Act is both based on the spirit of state compensation and
at the same time welfare for war veterans and bereaved families of the war
dead. This kind of social welfare is, as seem to be basically accepted
internationally, supposed to be dealt with by the state, to which the receivers
belong.
Considering
the particular nature of the Pension and the Relief Act, as discussed above,
there seemed to have been a reasonable ground for the Japanese government, upon
the enactment of the Relief Act and revision of the Pension Act, to insert the
nationality clauses to limit the eligibility to Japanese nationals,
anticipating the solution to the issue of compensation to Korean war veterans
in the form of some governmental agreement between South Korea and Japan. Even
if these nationality clauses have resulted in discrepancies in the treatment
between war veterans of the Japanese origin and those of the Korean origin,
leaving aside the legitimacy of such a legislative policy, that does not
straightly mean that these clauses violate Article 14-1 of the Constitution of
Japan (See the 28 April 1992 ruling of the Third Petty Bench of the Supreme
Court in Saibanshu Minji No. 164 p 295).
For these
reasons, the case of the plaintiffs is declined without further examinations
due to the lack of basis.
II-3. Compensation claim based on
the question of principles
Plaintiffs
argue that the Relief Act, Pension Act and other legislations of compensation
for war victims are based on the "spirit of state compensation" and
focus on the fact that these victims were met with casualties because of their
service to the Japanese Military. Nevertheless, they argue, the defendant has
been refusing compensation to the plaintiffs using the nationality clauses as a
shield. Given that the suffering of the plaintiffs with the losses of their
lives, bodies and freedom were not the same as general war damages suffered by
ethnic Japanese nationals but a different kind, particularized by the forceful
conscription of colonized people to the Japanese Military, the plaintiffs
argue, the defendant should concede to compensate for these losses as an action
based on principle.
However,
as discussed in 2-2, the victimization of lives, bodies and freedom pleaded by
the plaintiffs were nothing but sacrifice of war and the questions of whether
or not such compensations are necessary and how they are to be implemented seem
to be left to the discretion of the legislature, which would make judgment
taking into consideration the state finance, social and economic conditions and
documents on details and degrees of the damages for which compensation claims
are made. In addition, there seems no such principle yet established that
individuals can claim compensation for this kind of damages against the state
that waged the war.
We thus
conclude that the plaintiffs' claim lacks ground and so any further examination
is unnecessary.
(1) The
plaintiffs argue that the accused neglected its responsibility for securities
and other needs of soldiers corresponding to the comprehensive and absolute
command it exercised over them, securities of gunzoku based on the
employment relationship and of comfort women derived from its active and
systematic involvement in forceful recruitments of these women and setting up
and managing brothels.
The state
and employers are obligated to take into account the protection of their
employees from danger in the arrangements and management of work places,
facilities and equipments for as well as the process of work (See the 25
February 1975 ruling of the Third Petty Bench of the Supreme Court in Minshu
Vol.29-2 p 143 and the 10 April 1984 ruling of the Third Petty Bench of the
Supreme Court in Minshu Vol. 38-6 p557). Obligations such as this are
generally accepted as mutual or unilateral trust placed upon one party by the
other when they enter specific social relationship based on certain legal
contracts.
However,
the legal relationships that entail the obligation of safety care are varied
and the concrete details of the obligation differ depending on the type of job
and position of employees, actual work to fill the job assignment and the
concrete conditions, along which the obligation of safety care is to be
questioned. In the legal suits claiming compensations for the violation of the
aforementioned obligation, therefore, the burden to specify the content of
duties as described above and to make the case and give proofs is placed upon
the claimant (See the 25 February 1975 ruling of the Third Petty Bench of the
Supreme Court, ibid. and the 16 February 1981 ruling of the Second Petty Bench
of the Supreme Court in Minshu Vol. 35-1 p56).
In the
current case, the plaintiffs pointed out the defendant's neglect of its duty to
take sufficient precautions to the safety of the life and health of the
plaintiffs, but failed to specify concrete details of the obligation the
defendant allegedly neglected in terms of actual job conditions from which the
obligation derives. As the plaintiffs present no concrete details that would
correspond to the alleged violation of obligation, the case is declined for the
lack of substance.
Also, the
plaintiffs claim that the defendant forcibly recruited Koreans to serve as
soldiers, gunzoku and comfort women and, as it seems, that such forcible
recruitment implies an inherent obligation to take care of the safety of these
workers and try to prevent any violation of their lives and bodies by others as
well as its own staffs. However, it is difficult to interpret that the
defendant was responsible for their safety care with any such an absolute
liability as pleaded by the plaintiffs.
(2) For gunzoku,
the plaintiffs argue that their contracts with the defendant should be
interpreted that the state was liable to compensate for war casualties of these
workers for the neglect of obligatory safety care. However, we cannot find any
valid basis to interpret the contract as such.
The plaintiffs also argue that by conscripting Koreans to
serve as gunzoku, the defendant became under the obligation to help, if
not bear the expense of, their return home upon absolution and that the
defendant failed to fulfill this duty. However, as they failed to present any
concrete details of the alleged neglect, the case is declined for the lack of
substance,
II-5.
Claim based on violation of the Civil Cord (Article 709 and 715)
(1)
Liabilities based on the violation of the civil law
The
plaintiffs argue that during the fifteen years of war in China (1931-45), the
defendant repeatedly inflicted coercion and savagery upon them, their husbands,
fathers and brothers, brutality of which corresponded to "crimes against
humanity"and was a grave violation of the domestic civil code at the same
time. For the violation of Article 709 and 715 of the Civil Law, they argue,
the defendant is liable to compensate for the damages.
Before the
enactment of the State Redress Law on 27 October 1947, there was no legal basis
to make the state liable to compensate for any damages on the population in
general. At that time, actions based on public statues could be tried under
civil statues for the part of non-authoritative effects, but not for the part
of authoritative effects so that the state was not answerable to any damages
suffered by individuals (See the 16 February 1941 ruling of the Imperial
Supreme Court in Minshu Vol. 20-2 p118 and the 11 April 1950 ruling of
the Third Petty Bench of the Supreme Court, Saibanshu Minji Vol.3
p225).
As the
State Redress Law provides as a transitional measure that "damages caused
by the actions that took place before the enactment of this law should be put
under the old rules" (supplementary provisions No. 6), the state actions
in question, which took place before that date, cannot be made applicable to
Article 709 and 715 of the current Civil Law.
And, as
the defendant's actions in question seems to be a part of its war efforts, an
exercise of the state authority, the defendant is not liable to compensate for
the damages stemming from these actions on the basis of the civil code.
Note that
none of the cases cited by the plaintiffs as references (the 25 October 1926
ruling of the Imperial Supreme Court in Minroku Vol. 24 p2062 and the 10
April 1956 ruling of the Supreme Court, Sohmu Geppo Vol.5 p88) is relevant
to the affect of the state or local governments' exercising their authoritative
power.
(2) Statue
of Limitation
Whereas
the alleged deeds of the defendant took place during the 15 years war including
the war in the Pacific, this law suit was filed more than two decades after the
end of the Pacific war. Given this, the alleged right of the plaintiffs to
claim compensation for the ensuing damages should have expired according to the
statue of limitation.
(3)
Therefore, the claim for compensation based on the civil code violation is
declined for the lack of ground, needless to add further examinations.
II-6 Claim based on legislative
nonfeasance in Article 1-1 of the State Redress Act
(2)
Article 17 of the Constitution of Japan reads "Anyone can claim for
compensation against the state or public institutions if they suffered from
illegal actions of civil employees," and its embodiment Article 1-1 of the
State Redress Act says "If civil employees in exercising power of the
state or public institutions caused damages on others illegitimately, by
intention or by mistake, the state or public institutions will bear the
responsibility to compensate for the loss."
Legislative
activities by the parliaments are exercise of public authority and thereby
could be subject to Article 1-1 of the State Redress Act. However, under the
parliamentary democracy system embraced by the Constitution of Japan,
responsibility for Diet members' behaviors in the process of law making are
basically left to the political judgment of individual Diet members and the
validity of their judgments should ultimately be evaluated by the population
through freely expressed political opinions and voting behaviors.
Accordingly,
members of the Diet are, for the matter of their legislative activities, only
politically responsible to the population as a whole and not liable to any
legal obligations to respect the right of the individual population. Unless in
some very unlikely and exceptional cases, such as the Diet purposefully
legislates the law that$B!!(Bobviously violates the Constitution, any law making behaviors of Diet
members could not be blamed as illegitimate in terms of Article 1-1 of the
State Redress Act (the 21 November 1975 ruling of the First Petty Bench of the
Supreme Court, Minshu Vol. 39-7 p15122 and the 26 June 1987 ruling of
the Second Petty Bench of the Supreme Court in Saibanshu Minji Vol. 151
p147).
Coming
back to our case, anywhere in the Constitution, the preamble or else, we found
no such provisions that primarily lay down the obligation of legislative
feasance as claimed by the plaintiffs. It follows that it cannot be interpreted
that there is no constitutional requirement nor legislative obligation for the
legislation claimed by the plaintiffs.
(3) For
these, we cannot accept the above argument of the plaintiffs and drop their
claim for the lack of ground.
[Trial] [Home] [Forum] [Table]
Compensation Claims for Unpaid
Salaries and Other Losses
I. Compensation Claims for Unpaid Salaries, etc.,
I-1 Ten of
the plaintiffs claim against the state for unpaid salaries, etc., whereas the
defendant argues that even if the plaintiffs did have such claims, they
disappeared upon the agreement between Japan and South Korea on the settlement
of asset and claim disputes as well as economic cooperation and the ensuing
enactment of a domestic law concerning the disposition of South Korean assets,
etc., (hereinafter referred to as the Sochi-ho), specifically Article 1.
I-2 The
plaintiffs' claim is examined as follows.
(1) The
Sochi-ho lays down that those property rights held by the state of South Korea
and its nationals (their credits to, and security warranties set on the assets
held by, Japan or its nationals) that match the definition in Article 2-3 of
the Japan-ROK agreement on the settlement of property claims and economic
cooperation (Treaty No.27 in 1965, hereinafter referred to as the Japan-ROK
property claim agreement) in principle lapsed on 22 June 1965.
The court
acknowledges the following facts based on the evidences and the key tone of the
pleads presented by the plaintiffs:
1) Article
4 -(a) of the San Francisco Peace Treaty left the settlement of property claims
by the authorities and populations of the span-off territories of the former
Japanese Empire against Japan and its nationals to special arrangements
negotiated between Japan and these authorities. Accordingly, Japan and South
Korea started negotiations on the question of property claims, aiming to
normalize their diplomatic relationship. After a decade of negotiations,
however, they found it extremely difficult to resolve the property claim issue
through the way in which Japan was to pay only for the claims made by South
Koreans with sufficient legal grounds and established facts, because of the
difference in their views over the legal requirement for these claims and the
difficulties in establishing facts as documents were scattered and lost. So the
two governments came to an agreement that, taking into account Japan's
financial condition as well as South Korea's need for money to finance its
economic development, Japan was to pay 300 million dollars in free grant and
200 million dollars in long-term public loans with a low interest rate, with
the aim of assisting the stabilization of people's livelihood and facilitating
the economic development of South Korea. Along with this, the two governments
agreed that the issue of property claims was completely settled once and for
all and they signed on the Japan-ROK property claim agreement on 22 June 1965
(effective from 18 December 1965).
2) Article
2 of the Japan-ROK property claim agreement states that the two signatory
states affirm that all the questions concerning properties, rights, and
interests of, and property claims between, them and their populations
(including corporations), including those established in Article 4-(a) of the
San Francisco on 8 September 1961, were to be settled with the implementation
of this agreement once and for all (Article 2-1). And that this provision does
not affect the following (except for those put under special treatments by each
state by the signatory date of this agreement): (a) properties, rights and
interest of the nationals of one of the signatory state who resided the other
state at some point between 15 August 1947 to the signatory date of this
agreement; (b) properties, rights and interests of one of the signatory state or
its nationals, which were obtained by, or came under the jurisdiction of the
other state through normal contacts on and after 15 August 1945 (Article 2-2).
On condition that the provision 2 is observed, no claims can be made regarding
the treatments of properties, rights and interests of one of the signatory
state and its nationals which are under the jurisdiction of the other state on
the signatory date of this agreement, and claims by one of the signatory state
or its nationals against the other state or its nationals based on any reasons
occurring before that date (Article 2-3).
3) On 22
June 1965, when the Japan-ROK Property Claim Agreement was signed, the
governments of Japan and South Korea confirmed the minute, in which they agreed
on the following: 1) the "properties, rights and interests" provided
in Article 2 refer to all kind of substantive claims that have any asset values
on legal grounds (Minute 2-a), 2) the "treatments" provided in
Article 2-3 of the Japan-ROK agreement refer to the domestic measures that were
to be taken by each signatory state to settle disputes over the claims between
the two states and their nationals (Minute 2-e), and 3) disputes over the
properties, rights, and interests of, and any claims between the two states or
their nationals, which were to be "settled once and for all" as
provided in Article 2-1, include all the claims which were covered by the eight
demands presented by the South Korean government to Japan in the precedent
talks of the two countries, meaning that no further claims can be made
concerning the eight points (Minute 2-g).
4) In
response to the Japan-ROK agreement, South Korea enacted a series of laws to
establish a public fund to assume the compensation for domestic private claims
against Japan before 15 August 1945, including legislations about the
management of the claim fund (February 1966), the procedure for declarations by
private people of claim against Japan (January 1971) and compensations for
private claims against Japan (December 1974). By these laws, the South Korean
government, using part of the aforementioned 300 dollars (18bn yen at that
time) in free grant from Japan, carried out state compensations for invalidated
private claims against Japan, including various receivables, such as marketable
securities issued by the Japanese government, and compensations for those
conscripted to the Japanese military or for labor services and died before the
end of the war.
5) In
Japan, domestic measures as provided in Article 2-3 were taken through the enactment
of the Sochi-ho, which lays down that those property rights held by
South Korea and its nationals, which correspond to the "properties, rights
and interests" as defined by Article 2-3, have in principle lapsed by 22
June 1965.
(2) Based
on these facts, it seems that the Japan-ROK agreement, with recognition of the
difficulties to make judgments and estimates on an individual basis on the
eight categories of claims presented by the South Korean government against
Japan in the diplomatic talks for the normalization of the Japan-Korea
relation, was tosettle the issue on a highly diplomatic and political judgment
with free grants and loans extended by Japan to South Korea. The key note of
Article 2-1 and 3 of the agreement seems to be that the two countries will not
exercise diplomatic protection over the properties, rights, interests, and
claims of themselves and their nationals, leaving the solution of individual
cases fully to each other's domestic legislations. According to the agreement,
Japan implemented domestic measures with the enactment of the Sochi-ho,
by which those property rights of South Korea and its nationals matching the
"properties, rights and interests" as defined by Article 2-3 of the
Japan-ROK agreement effectively lapsed on 22 June 1965.
(3) The
plaintiffs argue that the "properties, rights and interests" defined
by the Japan-ROK agreement and the Sochi-ho should be interpreted to
indicate the property rights that had fixed asset values established by
concerning laws, whereas the "claims" indicate other property rights
(those without fixed asset values but claimants' rightfulness has legal
grounds). Their claims for unpaid salaries, they argue, do not correspond to
the category of "all sorts of substantiated rights that have any asset
values backed by the law" as provided in the minute of the agreement,
because they were not originated by the laws for the salaries of
yet-to-demobilized soldiers and the relief of the families waiting for their
return, nor they match the definition of "properties, rights and
interests," which lapsed upon the implementation of the Sochi-ho,
because the allowances provided by these laws are below the proper value of
unpaid salaries, the concrete amount of which have not established yet.
However,
the "properties, rights and interests" provided in Article 2-3 of the
Japan-ROK agreement should be understood to include all sorts of substantive
rights with any legal asset values."Claims," on the other hand,
should mean those rights without any such substantive legal ground (See 2-a of
the minute). As the plaintiffs plead that their claims for unpaid salaries
stemmed from contracts between them and the defendant or their public statue
status of soldiers and gunzoku, these claims should be understood as a
sort of substantive rights, which have some legally defined asset values and
thereby included in the "properties, rights and interests" provided
in Article 2-3 of the Japan-ROK agreement. In addition, their claims for
deposits in the Postal Saving system are obviously included in the
aforementioned "properties, rights and interests."
(4)
Accordingly, we have concluded that the plaintiffs' claims for unpaid salaries
and other credits have all lapsed by the enactment of the Sochi-ho.
1-3. The
plaintiffs also plead that whereas the Japan-ROK agreement only means that the
two states promise that they will not exercise their diplomatic protection on
this issue against each other, the Sochi-ho annihilated the property
rights of Korean nationals with no reasonable grounds, which would be a
violation of Article 29-2 of the Constitution of Japan. In addition, the law
violates Article 3 of the Constitution because it invalidated property rights
of Korean nationals without appropriate compensations for that.
The
passage for the series of diplomatic negotiations between Japan and South Korea
to normalize their relationship, the conclusion of the Japan-ROK agreement and
the domestic enactment of the Sochi-ho was as described above. Having
been put under the total control of the Allied Forces, Japan had no choice but
to accept the San Francisco Peace Treaty to recover the sovereignty. The
Japan-ROK agreement, which was to settle the inter-state disputes over
properties and claims stemming from separation of South Korea from Japan as
provided in the San Francisco peace treaty, was concluded on a highly
diplomatic and political decision as an indispensable instrument to eliminate
the barriers between the two countries to normalize their diplomatic relation
and establish friendship. The Sochi-ho was enacted based on the
Japan-ROK agreement. As such, the dealing of the Sochi-ho to extinct a
certain property right of South Korean nationals was none other than a direct
result of the San Francisco peace treaty and the Japan-ROK agreement concluded
in the aforementioned circumstances. Situations such as the spin off of a part
of the state territory were something beyond the anticipation of the
constitution and thus outside its cosmos.
This
follows that even if the treatments associated with the state separation
resulted in a disfavor to South Koreans, that should be taken as a necessary
evil similar to war damages. Compensation for such damages, therefore, is a
question beyond the scope of Article 29-2 and 3 of the Constitution of
Japan.
Therefore,
Sochi-ho's terminating individuals' property rights without appropriate
compensation cannot be taken as an violation of Article 29-2 and 3 of the
Constitution.
1-4.
Following the discussions above, we conclude that even if the ten plaintiffs
had claims against the defendant for unpaid salaries and other receivables,
these claims lapsed on 22 June 1965 upon the implementation of the Sochi-ho.
Accordingly, we consider that the plaintiffs' aforementioned claims have no
ground.
Ten of the
plaintiffs argue that even if the Sochi-ho is not violating Article 29-2
of the Constitution, Article 19-3 still enables them to demand compensation for
the laps of their claims for unpaid salaries, etc., based on the Sochi-ho.
However,
as discussed with Article 29-2, even if the treatments associated with the
state separation resulted in a disfavor to South Koreans, that would be a
necessary evil and beyond the scope of the Article 29-3 of the Constitution of
Japan.
Therefore,
Article 29-3 of the Constitution cannot be the ground for the plaintiffs to
demand compensation for the laps of their claims for unpaid salaries, etc., by
the Sochi-ho.
As such, the plaintiffs' claim for compensation lacks
ground.
Conclusion
For
reasons stated above, we have declined all the claims presented by the
plaintiffs for the lack of legitimate reasons.
Judge Makoto Kusano
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