This is from Canada ALPHA (Association for Learning and Preserving the History of WWII in Asia), action needed!
Japan tries to decline rights of Chinese victims for compensation at Supreme Court
I earnestly appeal to you and your organization to write a similar letter to the Supreme Court of Japan to support the long-overdue redress for the forced labour victims. Please also help to ask other human rights organizations, scholars, human right lawyers, elected politicians to write a similar letter as well. Feel free to adapt Canada ALPHA’s letter for your use and forward the attachments to those who you deem appropriate. As the Special Court hearing will be held on March 16, 2007. The letters need to arrive the Court before that date.
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February 27, 2007
Hon. Ryoji Nakagawa, Presiding Judge
Hon. Niro Shimada, Judge
Hon. Osamu Tsuno, Judge
Hon. Yuki Furuta, Judge
Hon. Isao Imai, Judge
The Second Petty Bench
Supreme Court of Japan
4-2,Hayabusa-cho,Chiyoda
Tokyo, Japan
Dear Honorable Judges,
Re: Your January 15, 2007 decision to hold a special hearing regarding Chinese war victims’ right to claim against Nishimatsu Construction Co., Ltd.
As a Canadian human rights organization committed to supporting justice for victims of the Japanese government’s wartime measures during the Asia Pacific War, we are writing to raise our concern regarding the appropriate body to hear this case as well as the specific legal arguments related to the individual’s right to claim damages for war crimes.
For the past several years, we have been closely following the court cases of victims of atrocities committed by the Japanese imperial forces, including Chinese war victims seeking justice and compensation from the Japanese government and Japanese companies.
We were pleased that in the case of Chinese forced labour victims seeking compensation from Nishimatsu Construction Co., Ltd., the Hiroshima High Court upheld the basic legal principle of fairness and justice and ruled in favour of the war victims on July 9, 2004. Moreover, in the verdicts of this case handed down by both the district court and high court acknowledged the facts related to the atrocities based on evidence submitted by the Chinese plaintiffs.
To our disappointment, Nishimatsu Construction Co., Ltd then appealed to the Supreme Court of Japan. In response, your Petty Bench informed the appellants on January 15, 2007 that other than the issue of Chinese individual victims’ right to claim against Japan for compensation, no other appeal grounds would be considered. The special hearing debating this issue is set for March 16, 2007 at the Petty Bench. Is this the appropriate lieu? Would it not be more appropriate for such a debate to take place at the Grand Bench of the Supreme Court of Japan since this matter involves interpretation of international treaties, has the potential to provoke a diplomatic crisis between Japan and China and jeopardize the opportunity of building genuine trust and reconciliation between people of the two nations?
In any event, we would like to bring your attention to the fact that the Chinese victims’ right to claim for compensation has never been abandoned by any treaties between China and Japan. We urge the Supreme Court to consider the following in the special hearing:
1. China was not a signatory of the San Francisco Peace Treaty (1951) and was not even invited to join the negotiation of the Treaty. Thus, the Treaty has no binding effect on China. In any case, the San Francisco Peace Treaty does not waive the victims’ individual right to claim for compensation. During the treaty discussions themselves and in both the lawsuits of Japanese detained in Siberia and that of atomic bomb victims, the Japanese government has consistently expressed the view that what was abandoned in the San Francisco Peace Treaty was not the individual’s right to claim, but only the right to claim by the government on behalf of the individual from another nation (the right of diplomatic protection). But in similar lawsuits with Chinese as the plaintiffs, the Japanese government offered a totally different interpretation. In adopting such a double standard the Japanese government has effectively forfeited any credibility on this issue.
2. The Sino-Japanese Peace Treaty (1952) cannot be used as an excuse for the abandonment of the Chinese victims’ right to claim. The Sino-Japanese Peace Treaty was void after the signing of the Joint Communique of the Government of Japan and the Government of the People’s Republic of China in 1972. Even at the time when the Treaty was signed it was of limited application. As defined in an official exchange document attached to the Treaty, the Sino-Japanese Peace Treaty could only apply to territory actually controlled by Republic of China then and in the future. Therefore the Sino-Japanese Peace Treaty has established itself as not applicable to the People’s Republic of China.
3. It is public knowledge that claimants arising from wars include states, groups and individuals. This is due to the characteristics of damages. Individual or group property cannot be substituted with state property. By the same token, an individual’s right cannot be unconditionally taken over by the state. Any abandonment of the right should be openly and explicitly expressed. In the Joint Communique the Chinese government did not declare that it abandoned the right to claim of Chinese citizens on their behalf. It was based on this understanding that the first and second instance rulings by District Courts or High Courts in Tokyo, Fukuoka, Niigata, Hiroshima etc. did not support the Japanese government’s position of “the abandonment of the Chinese victims’ right to claim”. The only exception was the ruling of the Tokyo High Court on March 18, 2005, which supported for the first time the Japanese government’s position of “abandonment of Chinese victims’ right to claim” in the “comfort women” cases. This verdict by the Tokyo High Court violated legal precedent and was a provocative aberration.
4. The Joint Communique did not give up the Chinese nationals’ individual rights to claim for seeking compensation from Japan. What does exist is the speech by the Chinese Foreign Minister Qian Qichen in 1995, which clearly stated, “The Joint Communique abandoned the right to claim of the state, but the right to claim of the individuals has not been abandoned.”
Offering victims humanitarian consolation is an act of respect for basic human rights. Those who inflicted suffering and pain in violation of the rules of war should be held accountable for both their criminal responsibilities and civil liabilities. Only in this way can there be a deterrent effect on who seek to use military force to gain global hegemony. Hence the efforts of war victims seeking compensation from Japan are equivalent acts of defending world peace. It is only when the Japanese state is able to deal with Chinese war victims’ compensation demands on the basis of fairness and justice can there be meaningful restoration and development of trust and constructive relationship between the Chinese and Japanese peoples for many generations to come.
We expect the Supreme Court of Japan to uphold the basic legal principle of fairness and justice and grant the long-overdue redress to the victims by rejecting Nishimatsu Construction’s appeal on the ground of the so-called “abandonment of the Chinese victims’ right to claim”.
Any court decision discriminating against these Chinese plaintiffs’ right to claim would be utterly unacceptable and tarnish the integrity of the Supreme Court of Japan in the eyes of the international community.
I sincerely hope that the impartiality of your Court can withstand the political pressure of the Japanese government and corporations and will render a just verdict, as is the case with your counterparts in other developed states.
Respectfully submitted,
SIGNED
Thekla LIT
Co-chair of Canada ALPHA
c.c. 1. Support Group for Chinese Plaintiffs against Nishimatsu Construction
2. Ministry of Foreign Affairs of the People’s Republic of China
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Background
How did the argument “Abandonment of the Right to Claim” come about: The purpose of the Japanese Supreme Court to hold a special hearing debating this issue
Among the lawsuits filed by some Chinese war victims in Japanese courts seeking compensation from the Japanese government and some Japanese corporations, eight of them are currently in the process of being tried by the Supreme Court of Japan (not including the ones already ruled by the Supreme Court). Of these 8 cases, 7 are appeals by Chinese victims who refused to accept the second instance judgment by the Japanese high courts, the other one is the appeal by the Japanese government and Nishimatsu Construction Co., Ltd. (西松建设) refusing to accept the sentence by the high court in Hiroshima which requires them to compensate the Chinese forced labour victims. Although we have filed the written request to have a hearing long time ago, the Supreme Court has not arranged for any hearing of the cases appealed by the Chinese victims. Instead, it made a decision recently (on January 15, 2007) to hear the case appealed by the Nishimatsu Construction and to hold a session to debate whether the Chinese government has, on behalf of the Chinese citizens, given up the right of individuals to claim for compensation.
It becomes necessary for us to pay close attention to the reason why the Supreme Court choose to hear first the appeal case of Nishimatsu Construction , and why it will focus on the issue whether the Chinese citizens’ right to claim has been abandoned.
- Nullify defenses of “statutory time limitation” and “state immunity”
Since June 1995, some of the Chinese victims have filed lawsuits in Japanese courts in Tokyo, Sapporo, Kyoto, Nagano, Fukuoka, Niigata, Gunma, Yamagata, Miyazaki and Kanazawa, seeking compensation from the Japanese government and Japanese corporations involved. The lawsuits involve cases of massacre, indiscriminate bombing, abandoned chemical weapons and shells, Unit 731’s experiments using live human subjects and its deployment of germ bombs, “comfort women” and cases of forced labour. There have been 27 cases in total. Before 2002, the Japanese government, as perpetrators had been avoiding to face the truth and not to take responsibilities by using ”time limitation” and “state immunity” as its ground of pleading. The Japanese corporations involved held the same attitude. Before 2000, the verdicts made by Japanese courts simply followed the Japanese government’s claims and ruled against the Chinese victims (plaintiffs).
On July 12, 2001 the Tokyo District Court, for the first time, using the basic legal principle of equity and justice, rejected the defense of “time limitation” put forward by the Japanese government and supported the claim made by the Chinese forced labour victim Liu Lianren. This result was achieved with the efforts by Chinese and Japanese lawyers, scholars, and the Japanese people’s support groups as well as the plaintiffs. Then, in lawsuits such as: Chinese forced labour victims seeking compensation from the Japanese government and Mitsui Mine (三井矿山) in Fukuoka District Court (ruled on April 26, 2002); the Chinese forced labour victims against the Japanese government and Rinko Corp in Niigata (新泻临港集团) in Niigata District Court (ruled on March 26, 2003); the case of some of the victims against the Japanese government for abandoning chemical weapons and shells in China in Tokyo District Court (ruled in September 2003), and the case of Chinese forced labour victims seeking compensation from Nishimatsu Construction Co., Ltd. (西松建设) in Hiroshima High Court (ruled July 9, 2004), all of the courts concerned applied the basic legal principle of equity and justice and rejected the defense of “time limitation” put forward by the Japanese government and Japanese corporations. Besides, on January 15, 2003, in the case of Chinese forced labour victims seeking compensation from the Japanese government and Nippon Yakin Kogyo Co Ltd (日本冶金工业株式会社), although Kyoto District Court did not support the claim by Chinese plaintiffs, the verdict nullified the defense of “state immunity” for the first time. Later, in cases tried in Tokyo High Court, Fukuoka High Court, and Niigata District Court, the claim of “state immunity” by the Japanese government were all rejected. Besides, in all the verdicts made by the Japanese courts, the facts of atrocities committed as proved by the evidence given by the Chinese (plaintiffs) had all been acknowledged.
From the above mentioned facts, we can see that the lawsuits seeking compensation from Japan is slowly making progress. The trend of acknowledging the plaintiff’s claims has been gradually forming.
At the end of 2002, when the lawsuits launched by the Chinese victims seeking compensation from Japan had been going on for 7 years, a new defense argument was used by the Japanese government, that is, “the plaintiff’s right to claim for personal compensation has been abandoned through the treaties.” This argument is called “abandonment of the right to claim.”
- Using The Sino-Japanese Peace Treaty as the basis, the Japanese government proposes that the Chinese people have abandoned the right to claim.
On April 28, 1952, the Japanese government signed the Sino-Japanese Peace Treaty with Taiwan. The treaty recognized the principles of San Francisco Treaty. Some people regard that the right to claim of the individuals has been resolved in the San Francisco Treaty. But that treaty has no written provisions on this.
- The Japanese government holds that the Joint Communique of the Government of Japan and the Government of the People’s Republic of China was signed on the ground that the Sino-Japan Peace Treaty had resolved the issue of war compensation and that the issue of compensation should not be brought into discussion again. Therefore, the right to claim of the Chinese with regard to the war had long been abandoned with the signing of the Sino-Japan Peace Treaty .
- China has not signed the San Francisco Treaty and is not a member of the Treaty. The Treaty has no binding effect on China.
- San Francisco Peace Treaty has not altogether abandoned the right to claim of individuals.
During both the lawsuits of Japanese detained in Siberia and that of atomic bomb victims, the Japanese government expressed that the position of the Japanese government had always been that what was abandoned (here referring to San Francisco Peace Treaty) was not the individual right to claim, but the right to claim by the government on behalf of the individual to ask for compensation from another nation (the right of diplomatic protection). But in similar lawsuits with Chinese as the plaintiff, the Japanese government offered a totally different interpretation. This practice of double standard shows that the Japanese government is extremely dishonest when dealing with war responsibility.
- The Sino-Japanese Peace Treaty was void and even at the time when it was signed it was of limited application.
As defined in an official exchange document attached to the Sino-Japanese Peace Treaty, the Sino-Japanese Peace Treaty could only apply to territory actually controlled by Republic of China then and in the future. Therefore the Sino-Japanese Peace Treaty has established itself as not applicable to the People’s Republic of China.
Moreover, in 1972 when China and Japan restore their diplomatic relations, the precondition was that Japanese government agreed there was only one China. It was under this precondition that the diplomatic relations of the two countries were restored and the Joint Communique signed. Article 2 of the Communique states, “The Government of Japan recognizes that Government of the People’s Republic of China as the only legitimate Government of China.” Now the Japanese government is using the Sino-Japanese Peace Treaty it signed with Taiwan as its defense. This is an act that violates its position defined in the Joint Communique.
Article 5 of The Joint Communique signed by the Japanese and Chinese governments in 1972 states, “The Government of the People's Republic of China declares that in the interest of the friendship between the Chinese and the Japanese peoples, it renounces its demand for war reparation from Japan.”
It is public knowledge that claimants arising from wars include states, groups and individuals. This is due to the characteristics of damages. The individual or group property cannot be substituted by the state property. By the same token, the individual’s right cannot be unconditionally taken over by the state. Any abandonment of the right should be expressed clearly. In the Joint Communique the Chinese government did not declare that it abandons the right to claim for Chinese citizens on their behalf.
Therefore, as stated above, before 2005, the first and second instance rulings in District Courts or High Courts in Tokyo, Fukuoka, Niigata, Hiroshima etc. did not support the position of “abandonment of the right to claim” by the Japanese government.
On March 18, 2005, Tokyo High Court supported for the first time the Japanese government’s position of “abandonment of the right to claim” in its ruling on the second batch of Chinese “comfort women” cases. The verdict states that in 1952 when the Sino-Japanese Peace Treaty was signed, the government of Republic of China was the “proper government” and the treaty it signed with Japan was valid. The provision on war compensation is applicable to all China, not restricted to certain territories. It follows that the Sino-Japan Peace Treaty is applicable to all territories of China, including mainland China. This verdict by the Tokyo High Court clearly violated the law and is provocative. It shows the world a dangerous signal from Japanese judicial circle. It was in this context that the Supreme Court of Japan recently proposed to debate the issue of “abandonment of the right to claim.”
As the party responsible for launching that brutal and atrocious war of invasion, the Japanese government has never sincerely examined its role in the war, or borne the unavoidable responsibilities for the war. Some Chinese war victims, with the help of conscientious Japanese lawyers and citizens, filed lawsuits in Japanese courts, hoping to solve through legal process this important issue left by history. This in fact has provided an opportunity for the Japanese government and the Japanese corporations involved for correcting past wrongs without losing face. Unfortunately, the Japanese government and the Japanese corporations involved have not valued this opportunity at all. Instead they have been trying all the means and sparing no effort to avoid shouldering the responsibility. When their excuses have been refuted one after another, they proposed this new trick, “abandonment of the right to claim.” Some Japanese judges, in order to free the Japanese government and the Japanese corporations involved from taking responsibilities, have gone so far as to cause diplomatic crisis by violating the position of “one China” as established in The Joint Communique, concluding that the Chinese plaintiff’s right to claim have been abandoned through the signing of the Sino-Japanese Peace Treaty with the Taiwan government. If this excuse receives the unjustifiable support from the Supreme Court of Japan, it will offer the Japanese government a completely exculpatory result. It will in effect put on end to all lawsuits filed by the Chinese victims and free the Japanese government and the Japanese corporations involved from taking responsibilities for the war. It goes without saying that we should strongly condemn this act of blatant disregard of law.
Written by: KANG Jian, Attorney-at-law
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See also:
Donations to support forced Chinese labourers abducted by Japanese urged
Tags: japan, china, war, wwii, forced labour, war crimes, atrocities
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