LEGAL BASIS OF THE CLAIM
The Shaming of The British Government - The Foreign Office Documents 1955
The lawsuit filed against the Government of Japan arises under International Law principles. The adjudication of the issues pending before the court will be based mainly on the Hague Convention IV, "respecting the Laws and Customs of War on Land" (1907), and the Geneva Convention on Prisoners of war, "relative to the Treatment of Prisoners of War" (1929).
The Hague Convention is considered to embody the rules of the customary international law. Japan signed it in 1911 and implemented it in 1912. Therefore, when Japan began its transgressions in WWII, it was bound by the Convention. We have argued that the effect of breaching the Hague Convention is clearly set out in Article 3 which reads:
"A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces."
According to this provision, the Japanese government is liable to pay compensation for the atrocities committed by the Japanese Army in the occupied territories. In addition, the specific use of the word "compensation" in the text of the Convention is extremely significant because it indicates that the intent of the drafters was to provide for a remedy for individuals.
The Geneva Convention of 1929 was signed by Japan but not ratified because of Japanese military objections. It was signed by 47 countries and ratified by 40 by 1941 and became part of the Hague Convention manifested as International Customary Law and is part of the restraint placed on the Japanese Government. However, Japan withheld its ratification. In spite of the lack of an official ratification, the Japanese Government, after the attack of Pearl Harbour, responded through letters to the Swiss Embassy in Tokyo, that it would behave "in accordance with" the Geneva Convention. It is clear from the actions of the Japanese Government that they bound themselves to the full force and effect of the Geneva Convention. We have specifically argued that Japan has violated Article 2 of the Geneva Convention which states:
"Prisoners of war are in the power of the hostile Government but not of the individuals or formations which capture them. They shall at all times be treated and protected, particularly against acts of violence, from insults and from public curiosity. Measures of reprisal against them are forbidden."
Under these two conventions, a government has an international obligation to prevent the inhuman treatment against POWs and civilian internees. We have argued that every nation has the obligation to individual members of the nations as well as to the contracting states.
There are two basic legal hurdles that must be overcome in order to succeed in this lawsuit. First, we must establish that a claim for monetary compensation has a legally recognisable basis accruing to individuals. To support this position, we scheduled the appearance of an expert witness in Tokyo District Court. On 23rd June 1997, Professor Frits Kalshoven, Professor Emeritus of International and Humanitarian Law at Leiden University, Netherlands who submitted a supporting opinion.
Second, we must establish that our claim survived the subsequently consummated San Francisco Peace Treaty of 1951. The Japanese Government signed the treaty along with 45 Allied Power countries, and it was ratified by the government on 18th November 1951 with the approval of the Diet. The Treaty was promulgated on April 28, 1952.We have argued that the small payments provided for in the San Francisco Peace Treaty cannot cover the permanent mental and physical damages and sufferings inflicted on the victims by the Japanese Imperial Forces.
Professor C Greenwood, Professor of International Law at the London School of Economics, London University has supported Professor Kalshoven's opinion and submission. On the position of the 1951 San Fransisco Treaty he goes on to say...
"There is however, the question whether the San Fransisco Peace Treaty has extinguished the plaintiff's claims. Article 14 of that Treaty, to which Japan and Western belligerents were parties, recognised the principle that Japan was liable to pay compensation to those who had suffered violations of the laws of war but accepted that Japan lacked the capacity in 1951 to pay full compensation. As a compromise, therefore, certain Japanese assets were liquidated and the funds used to pay a small sum (£76 sterling in the case of the British POWs and civilian internees) to the individuals concerned. Article 14(b) of the Treaty provided that:
'...except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war.'
On its face, this provision appears to be a waiver of the claims to compensation not only of the Allied States but also of their nationals. There are, however, good reasons for not reading it that way.
The San Francisco Peace Treaty was an agreement between the Allied States and Japan and, as such, is binding on all those party to it. It is not, however, binding upon the individual plaintiffs in the present case. While the Treaty therefore waives the rights of the Allied States themselves to bring any further claims, including their rights to bring claims on behalf of their nationals, it cannot waive the rights vested directly in the individuals themselves. In respect of the individuals, the Treaty is res inter acta and thus does not affect their rights, although it does preclude them from relying upon the States of which they are nationals to take up their cases by way of a formal claim.
Moreover, the 1951 Treaty was concluded between States who only shortly beforehand had concluded the four 1949 Geneva Conventions. A provision common to all four Conventions states that:
'No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the previous article.' (1st Convention, Article 51, 2nd Convention, Article 52, 3rd Convention, Article 131, 4th Convention, Article 148).'
The International Committee of the Red Cross Commentary on the Protocols to the 1949 Conventions interprets this provision in the following sense:
'On the conclusion of a peace treaty, the Parties can in principle deal with the problems relating to war damage in general and those relating to the responsibility for starting the war as they see fit. On the other hand, they are not free to forego the prosecution of war criminals, nor to deny compensation to which the victims of violations of the rules of the Conventions and the Protocol are entitled.' (Pilloud, and others, Commentary on the Additional Protocols of 8 June 1977 (ICRC, 1987), para.3651).'
Whilst the provisions in the Geneva Conventions were drawn up after the end of the Second World War, they would have been present in the minds of those who negotiated the San Francisco Peace Treaty and therefore cast light on what was intended by Article 14(b), suggesting that that Article was not intended to absolve Japan of its liability towards the individuals who had been the victims of violations of the laws of war while they were POWs or civilian internees.
A final consideration is that the Peace Treaty was a compromise between the principle that Japan was liable to pay compensation for violations of the law for which it was responsible and the recognition of the reality that the condition of Japan in the aftermath of the war was such that it could not be expected to pay full compensation at that time. The Allied States therefore waived most of their claims on the Inter-State level in order to assist Japanese recovery. It is entirely compatible with that approach that they intended to leave open the possibility of individuals bringing claims in the Japanese courts but based upon international law once that recovery had taken place.
In conclusion, therefore, it is my opinion that the facts alleged by the plaintiffs in the Bill of Complaint, if proved, would disclose violations of the Hague Regulations and the customary international law of war for which Japan is responsible and liable, by virtue of Article 3 of the Hague Convention and the customary law principle stated in that Article, to pay compensation. The right to compensation is vested in the individual plaintiffs under international law and should not be regarded as having been extinguished by the San Francisco Peace Treaty.
We are requesting that the Japanese Government pay symbolic compensation in the amount of no less than US $22,000 per claimant. In addition, we are requesting an official apology from the Japanese Government, admitting guilt (SHAZAI) which they have so far avoided.