Report of the Committee of Experts on the
Application of Conventions and Recommendations
Forced Labour Convention, 1930 (No. 29)
Japan (ratification: 1932)
Observation, CEACR 2002/73rd Session
The Committee notes the Government's report,
received on 1 November 2002, in which it
has provided responses, including four attachments,
to the Committee's last two observations,
as well as to a number of comments received
from workers' organizations. The Committee
also notes the Government's report, also
received on 1 November 2002, containing additional
responses to the communications of the trade
unions.
The Committee notes the communication of
the Tokyo Local Council of Trade Unions,
received on 6 June 2002, along with five
attachments, a copy of which was transmitted
to the Government on 29 July 2002, as well
as a communication of the All Japan Shipbuilding
and Engineering Union dated 29 July 2002,
and seven attachments, received by the ILO
on 12 August 2002, a copy of which was transmitted
to the Government on 2 September 2002. The
Committee also notes a communication of the
Korean Confederation of Trade Unions (KCTU)
and the Federation of Korean Trade Unions
(FKTU) dated 27 August 2002, received on
4 September 2002, as well as of its 11 attachments
received on 1 October 2002, a copy of which
was transmitted to the Government on 1 October
2002.
The Committee recalls that in several recent
sessions it has considered the application
of the Convention to two issues relating
to the Second World War and the years leading
up to it: military sexual slavery, of which
the victims are referred to as wartime "comfort
women", and wartime industrial forced
labour.
1. Victims of wartime sexual slavery
The Committee has previously considered the
occurrence, during the Second World War and
the years leading up to it, of a system by
which women and girls, referred to euphemistically
as "comfort women", were confined
to military camp facilities, so-called "comfort
stations", and forced to provide sexual
services to military forces, and it has found
that this conduct fell within the absolute
prohibitions contained in the Convention.
The Committee has recognized that this conduct
involved gross human rights abuses and sexual
abuse of the women and girls detained in
the military "comfort stations",
and that it should be characterized as sexual
slavery.
In paragraphs 8 and 10 of its 2000 observation,
the Committee noted the considerable number
of claims which had been commenced in Japanese
courts by comfort women which were pending
examination or had been decided or alternatively
were awaiting appeal to superior courts.
The Committee also noted in paragraph 5 of
the observation that, under the Committee's
terms of reference, it did not have the power
to order the relief which could be given
only by the Government as the responsible
body under the Convention. However, in paragraph
10 of that observation, the Committee expressed
that the Government would find an alternative
way, in consultation with the comfort women
and the organizations representing them,
to compensate them before it was too late
and in a manner which met their expectations.
Subsequently in its 2001 observation, the
Committee following receipt of a communication
from a workers' organization and the Government
correspondence in reply, again reiterated
its hope that the Government would be able
to respond to the claims made by the comfort
women in a satisfactory way and that it would
be in a position to supply particulars to
the International Labour Conference in 2002.
The Government by response in its latest
detailed report in relation to the topic
of comfort women makes three major points.
Firstly, it considers that there are procedural
irregularities in the preparation of the
2001 observation in that in its view the
observation:
- was prepared and published in reliance
on the communication from the trade union
pending further submissions from the Government
on the trade union communication;
- "jumped to the conclusion" without
scrutiny of the contents of the communication
of the trade union that the issue should
be discussed in the International Labour
Conference;
- took up the issue of the comfort women
when the trade union had addressed another
issue in relation to conscription of forced
labour.
Secondly, the Government expressed the view
that there is no legal basis for individual
claims for compensation arising from the
issues related to the circumstances of comfort
women and that the trade union assertions
are wrong. It therefore urges the Committee
to bring its deliberations to an end and
declare the case closed.
Thirdly, the Government contends that although
there is no legal liability in relation to
individual claims, it has nevertheless expressed
its apologies and remorse on numerous occasions
and refers to the Asian Women's Fund subsidized
by the letters sent by the Japanese Prime
Minister expressing apologies.
(a) Procedural issues
In relation to the first issue raised, the
Committee rejects that there has been any
procedural irregularity. The trade union
communication addressed the issue of war-related
compensation in general which was also relevant
to the circumstances of comfort women. The
serious matters raised by the Committee in
its 2000 observation concerning comfort women
as at that time had not been dealt with by
the Government and regardless of whether
the trade union specifically raised the matter,
the Committee is fully entitled to pursue
the situation and request that it be taken
up at the Conference.
(b) Legal basis for individual claims
In relation to the second issue, the Committee
notes that the Government takes the position,
as it has previously, that with regard to
reparations, property, and claims arising
out of the Second World War, "including
the issues known as 'wartime comfort women'
and 'conscription as forced labourers'",
it has "fulfilled its obligations".
It argues that the provisions of post-war
multilateral and bilateral peace treaties
and agreements with governments of the Allied
Powers and the States of the Asia-Pacific
region, waive or renounce war reparations
and other claims between the government parties
and their nationals.
(i) The treaties
The treaties referred to by the Government
include, but are not limited to:
- Article 14(b) of the 1951 Treaty of Peace
with Japan ("San Francisco Peace Treaty")
under which the Allied Powers "waive
all reparations claims … and other claims
of the Allied Powers and their nationals";
- article 2 of the 1965 Agreement on the
Settlement of Problems concerning Property
and Claims and on Economic Cooperation between
Japan and the Republic of Korea, which states
in part: "The Contracting parties confirm
that [the] problem concerning property, rights
and interests of the two contracting parties
and their nationals … is settled completely
and finally"; and
- article 5 of the Joint Communique of the
Government of Japan and the Government of
the People's Republic of China which stated
that China "renounces its demand for
war reparations".
The Government states: "In this sense,
the issues of claims, including claims of
individuals under domestic law, are settled
completely and finally between Japan and
its nationals and the Allied Powers and their
nationals."
(ii) Previous government statements
In its previous observation, the Committee
noted that the All Japan Shipbuilding and
Engineering Union indicated in its communication
of June 2001 that, with regard to war-related
compensation, the position of the Japanese
Government is that a treaty had put an end
to the right to demand compensation and the
right to diplomatic protection at the state
level, but not the right of individuals to
damages. The union stated that the Government
had made this position clear on many occasions,
such as:
- the Government's statement in Atomic Bomb
Victims Lawsuit (Final Judgement in 1963),
that "item (a) of the Article 19 in
the San Francisco Treaty does not mean that
the country of Japan has given up the right
of individual Japanese people to demand compensation
for the damages from Truman or the country
of the United States of America";
- the Government's statement in relation
to the Siberian Internee Compensation Lawsuit
(Final Judgement in 1989), in which it took
the position that the waivers, under clause
6, item 2, under the Joint Declaration of
Japan and the Soviet Union, "are claims
and the right of diplomatic protection the
State of Japan had, but not the claims of
individual Japanese people. When we say the
right of diplomatic protection, it means
the internationally acknowledged right of
States to seek the responsibility of a foreign
country for the damages Japanese people suffered
in the foreign territory arising out of violation
of the international laws on the side of
such foreign country … As stated before,
Japan did not give up any right belonging
to individual Japanese nationals under the
Joint Declaration of Japan and Soviet [Union]";
- a statement by Shunji Yanai, then chief
of the Foreign Ministry's Treaties Bureau,
to an Upper House Budget Committee session
on 27 August 1991, that the Japan-South Korea
Basic Treaty of 1965 had not deprived individual
victims of their right to seek damages in
domestic legal terms, but "only prevents
the Japanese and South Korean governments
from taking up issues as exercise of their
diplomatic rights".
The Committee notes that, in its reply to
the union's reference to these comments,
the Government indicates that the statement
of Mr. Shunji Yanai "was intended to
explain that all the issues of reparations
claims related to the last war between Japan
and the Allied Powers, including the claims
of individuals, had been settled from the
viewpoint of the right of diplomatic protection
that is a concept of general international
law. In other words, he explained that even
if Japanese nationals' claims against the
Allied Powers or their nationals were dismissed,
Japan could no longer pursue state responsibilities
of the Allied Powers". The Government
further notes an additional statement by
which "Mr. Yanai clearly explained at
the Committee on Foreign Affairs of the House
of Representatives of the Diet of Japan on
26 February 1992 that, 'with regard to substantive
rights with legal basis, namely property
rights, the Government of Japan nullified
the property rights of the nationals of the
Republic of Korea with certain exceptions
by this Agreement', and therefore that 'the
Korean nationals are no longer able to claim
against Japan these property rights with
legal basis either as private rights or rights
in domestic law'".
The Committee notes that the Government did
not provide any comments which refute the
other examples cited by the union, namely,
its statement in the Atomic Bomb Victims
Lawsuit (Final Judgement in 1963) and its
statement of interpretation of article 6
of the Joint Declaration of Japan and the
Soviet Union, in relation to the Siberian
Internee Compensation Lawsuit (Final Judgement
in 1989), other than to quote the text of
article 6 of that declaration.
(iii) Reports to United Nations human rights
bodies
The Committee also notes the final report
of 22 June 1998 on systematic rape, sexual
slavery and slavery-like practices during
armed conflict (UN document E/CN.4/Sub.2/1998/13),
submitted by Ms. Gay McDougall to the United
Nations Sub-Commission on Prevention of Discrimination
and Protection of Minorities (now the Sub-Commission
on the Promotion and Protection of Human
Rights) at its 50th session. The Committee
notes that Ms. McDougall, who was appointed
by the Sub-Commission as UN Special Rapporteur,
is the Executive Director of the International
Human Rights Law Group, and that her report,
which was forwarded with the observation
of the KCTU and the FKTU, has been cited
by the International Criminal Tribunal for
the former Yugoslavia as an authoritative
statement of international criminal law.
The Committee also notes the appendix to
the report, "An analysis of the legal
liability of the Government of Japan for
'comfort women stations' established during
the Second World War".
In her report, Ms. McDougall finds that "the
Japanese military's enslavement of women
throughout Asia during the Second World War
was a clear violation, even at that time,
of customary international law prohibiting
slavery … As with slavery, the laws of war
also prohibited rape and forced prostitution"
(appendix, paragraphs 12 and 17). The Committee
also notes the further findings: "The
widespread or systematic enslavement of persons
has also been recognized as a crime against
humanity for at least half a century. This
is particularly true when such crimes have
been committed during an armed conflict …
In addition to enslavement, widespread or
systematic acts of rape also fall within
the general prohibition of 'inhumane acts'
in the traditional formulation of crimes
against humanity …" (appendix, paragraphs
18 and 20).
Referring to article 2 of the 1965 Settlement
Agreement between Japan and the Republic
of Korea and Article 14(b) of the 1951 Treaty
of Peace, the report of Ms. McDougall states:
"The Government of Japan's attempt to
escape liability through the operation of
these treaties fails on two counts: (a) Japan's
direct involvement in the establishment of
the rape camps was concealed when the treaties
were written, a crucial fact that must now
prohibit on equity grounds any attempt by
Japan to rely on these treaties to avoid
liability; and (b) the plain language of
the treaties indicates that they were not
intended to foreclose claims for compensation
by individuals for harms committed by the
Japanese military in violation of human rights
or humanitarian law" (appendix, paragraph
55).
The Committee also notes the reference in
the trade unions' comments to paragraph 58
of the appendix to the McDougall report,
which states: "It is also self-evident
from the text of the 1965 Agreement on the
Settlement of Problems concerning Property
and Claims and on Economic Co-operation between
Japan and the Republic of Korea that it is
an economic treaty that resolves 'property'
claims between the countries and does not
address human rights issues [citation omitted].
There is no reference in the treaty to 'comfort
women', rape, sexual slavery, or any other
atrocities committed by the Japanese against
Korean civilians. Rather, the provisions
in the treaty refer to property and commercial
relations between the two nations. In fact,
Japan's negotiator is said to have promised
during the treaty talks that Japan would
pay the Republic of Korea for any atrocities
inflicted by the Japanese upon the Koreans
[citation omitted]."The Committee notes
further that in paragraph 59 of the appendix,
the report states: "Clearly, the funds
provided by Japan under the Settlement Agreement
[with Korea] were intended only for economic
restoration and not individual compensation
for the victims of Japan's atrocities. As
such, the 1965 treaty - despite its seemingly
sweeping language - extinguished only economic
and property claims between the two nations
and not private claims …".
The Committee further notes the points made
in paragraph 62 of the appendix to the report:
"As with the 1965 Settlement Agreement
between Japan and Korea, moreover, the interests
of equity and justice must prevent Japan
from relying on the 1951 peace treaty to
avoid liability when the Japanese Government
failed to reveal at the time of the treaty
the extent of the Japanese military's involvement
in all aspects of the establishment, maintenance
and regulation of the comfort stations [citation
omitted]. As an additional principle of equity,
when jus cogens norms are invoked, States
that stand accused of having violated such
fundamental laws must not be allowed to rely
on mere technicalities to avoid liability.
And, in any event, it must be emphasized
that Japan may always voluntarily set aside
any treaty-based defences to liability that
may be available to them in order to facilitate
actions that are clearly in the interests
of fairness and justice." The report,
at paragraph 12, recognizes that "the
prohibition against slavery … has clearly
attained jus cogens status [citation omitted]".
The Committee notes that, according to Article
53 of the Vienna Convention on the Law of
Treaties of 23 May 1969 (UN document A/Conf.39/28),
a jus cogens (peremptory) norm is "a
norm accepted and recognized by the international
community of States as a norm from which
no derogation is permitted …".
The Government in its comments on the report
of UN Special Rapporteur McDougall, states
that resolutions based on the report were
adopted annually by the Sub-Commission on
Promotion and Protection of Human Rights
from 1998 to 2002, and that "these resolutions
only 'welcomed' the report of Special Rapporteur
McDougall and made no reference at all to
Japan, nor to the issue known as 'wartime
comfort women'. There was absolutely no language
in the resolutions making any recommendations
to Japan or condemning Japan for anything".
The Committee points out, however, that whilst
the resolutions of the Sub-Commission, such
as resolution 2000/13 on the June 2000 update
to the final report of Special Rapporteur
McDougall do not include specific references
to, or recommendations for, any individual
country, the resolutions have taken general
note of the report and also call upon the
UN High Commissioner for Human Rights to
monitor and report to the Sub-Commission
on the status and implementation of the resolution
and of the recommendations made in the Special
Rapporteur's report of which note is taken.
The Committee notes the 1996 "Report
on the mission to the Democratic People's
Republic of Korea, the Republic of Korea,
and Japan on the issue of military sexual
slavery in wartime", submitted by Ms.
Radhika Coomaraswamy, UN Special Rapporteur,
to the 52nd session of the UN Commission
on Human Rights (UN document E/CN.4/1996/53/Add.1).
Addendum 1 of that report, which was forwarded
as an attachment to the observation of the
Korean Confederation of Trade Unions (KCTU)
and the Federation of Korean Trade Unions
(FKTU), refers in paragraph 107 to the report
of the International Commission of Jurists
(ICJ) of a mission on "comfort women"
published in 1994, which states that the
treaties referred to by the Government of
Japan "never intended to include claims
made by individuals for inhumane treatment.
[The ICJ] argues that the word 'claims' was
not intended to cover claims in tort and
that the term is not defined in the agreed
minutes or the protocols. It also argues
that there is nothing in the negotiations
which concerns violations of individual rights
resulting from war crimes and crimes against
humanity. The [ICJ] also holds that, in the
case of the Republic of Korea, the 1965 treaty
with Japan relates to reparations paid to
the Government and does not include claims
of individuals based on damage suffered".
(iv) Tribunal rulings
Women's International War Crimes Tribunal
for the
Trial of Japan's Military Sexual Slavery
The Committee notes the report of the New
York Times of 4 September 2001, referred
to by the Women's International War Crimes
Tribunal for the Trial of Japan's Military
Sexual Slavery, in its "Judgement on
the Common Indictment and the Application
for Restitution and Reparation" (Case
No. PT-2000-1-T), delivered on 4 December
2001 (corrected 31 January 2002), a copy
of which was forwarded by the All Japan Shipbuilding
and Engineering Union in its communication.
The report, authored by Steven C. Clemons
refers to a recently (April 2000) declassified
exchange of letters between Prime Minister
Shigeru Yoshida of Japan and the Minister
of Foreign Affairs of the Government of the
Netherlands, and occurring just prior to
the signing of the San Francisco Treaty of
Peace in 1951, in which Prime Minister Yoshida
conveyed the understanding that "the
Government of Japan does not consider that
the Government of the Netherlands by signing
the Treaty has itself expropriated the private
claims of its nationals so that, as a consequence
thereof, after the Treaty comes into force
these claims would be non-existent".
The Committee notes the "Judgement on
the Common Indictment and the Application
for Restitution and Reparation" (Case
No. PT-2000-1-T), of the Women's International
War Crimes Tribunal for the Trial of Japan's
Military Sexual Slavery, delivered on 4 December
2001 (corrected 31 January 2002), a copy
of which was forwarded by the union in its
communication. The Committee notes that the
Tribunal, which sat in Tokyo from 8 to 10
December 2000, is a People's Tribunal, which
was established to adjudicate gender-related
crimes that the International Military Tribunal
for the Far East, the original Tokyo Tribunal,
failed to redress. The Committee notes the
indication of the All Japan Shipbuilding
and Engineering Union, that the judges, chief
prosecutors, and legal advisers of the Tribunal
were "internationally renowned experts
involved in International Criminal Tribunals
for the former Yugoslavia and the International
Criminal Court for Rwanda", as well
as its reference to several of the important
findings in the Judgement. The Committee
further notes the comments of the Korean
trade union organizations, the FKTU and the
KCTU, on the Tribunal as "a civilian
initiative, with a highly respected panel
of judges".
The Committee notes the indication of the
Tribunal, in the Introduction and Background
of the Proceedings of its Judgement, that
the Registry of the Tribunal served the Government
with notice of the proceedings, including
an invitation to participate in the proceedings,
on 9 November 2000 and 28 November 2000,
but received no reply. The Tribunal nevertheless
endeavoured to consider all defences the
Government might conceivably raise on its
own behalf had it agreed to participate.
To that end, it requested that the anticipated
arguments of the Government be compiled by
an attorney assisting as amicus curiae (or
"friend of the court") and it received
an amicus curiae brief submitted in response
to this request. The Tribunal further considered
arguments advanced by the Government in cases
pending before its courts, and the responses
of the Government to the reports of the United
Nations Special Rapporteurs who have investigated
the military sexual slavery system.
The Committee notes the finding of the Tribunal
at paragraph 1034 of the Judgement, with
regard to the 1965 Agreement between Japan
and the Republic of Korea: "It can be
questioned whether 'property, rights and
interests' includes claims such as those
of the 'comfort women' against Japan. The
two States adopted Agreed Minutes of their
negotiation of the Peace Treaty in which
they agreed that 'property, rights and interests
means all kinds of substantial rights which
are recognized under law to be of property
value'. This would appear to exclude the
'comfort women's' extensive claims. Korea
submitted an outline of claims of the Republic
of Korea (called the Eight Items) at the
negotiations. There is no evidence that this
list included that claims of the comfort
women for crimes against humanity committed
against them and indeed the Treaty provisions
encompass 'either the disposition of property
or the regulation of commercial relations
between the two countries, including the
settlement of debts'"[citation omitted].
The Tribunal in turn quoted a 1970 Opinion
of the International Court of Justice (Barcelona
Traction, Light and Power Co. Ltd., 1970
ICJ Rep. 3, paras. 33-34 (5 February)), which
articulates the notion of obligations of
a State which, by their very nature, are
owed erga omnes- to the international community
as a whole: "Such obligations derive
… from the principles and rules concerning
basic rights of the human person, including
protection from slavery and racial discrimination."
Referring also to the third report of the
UN Special Rapporteur on State Responsibility
(UN document A/CN.4/507/Add.4, 4 August 2000),
the Tribunal found that: "the category
of norms which are generally acceptable as
universal in scope and non-derogable as to
their content, and in the performance of
which all States have a legal interest, is
small but includes 'the prohibitions of genocide
and slavery …'" In light of these principles,
the Tribunal found that "it is legally
impossible for bilateral or multilateral
agreements, even agreements concluded by
States of which the victims are nationals,
to waive the interests of non-participating
States in redressing injury done to all"
(paragraphs 1041-1043).
The Committee notes that, on the basis of
the reasoning of these and other legal points,
the Tribunal concluded that, with regard
to Japan's reliance on the Peace Treaties,
"the negotiating parties had no power
to waive the claims of individuals for harm
suffered as a result of the commission of
crimes against humanity and we reject the
assertion that these claims were effectively
or permanently waived".
The Government, in its comments on the Women's
International War Crimes Tribunal and the
Judgement it delivered in December 2001,
states: "The Tribunal was privately
organized by the people concerned and was
not an official organization. Therefore,
the Government of Japan is not in a position
to make any comments on the statements made
by the Tribunal, nor any views expressed
therein."
(v) Japanese and American court decisions
In its report, the Government states that
its interpretation that Article 14(b) of
the San Francisco Peace Treaty waived all
individual claims "is consonant with
a series of court rulings", and it then
quotes from rulings in two cases involving
claims brought by former prisoners of war:
a ruling of 21 September 2000 of the United
States District Court for the Northern District
of California, in the case of In re: World
War II Era Japanese Forced Labor Litigation,
and a ruling of 11 October 2001 of the Tokyo
High Court on a lawsuit filed by former Dutch
prisoners of war. The Committee notes the
ruling of the United States District Court
of California, as set out by the Government:
"[T]he treaty waives 'all' reparations
and 'other claims' of the 'nationals' of
Allied powers 'arising out of any actions
taken by Japan and its nationals during the
course of the prosecution of the war.' The
language of this waiver is strikingly broad,
and contains no conditional language or limitations,
save for the opening clause referring to
the provisions of the treaty. ... The waiver
provision of Article 14(b) is plainly broad
enough to encompass the plaintiffs' claims
in the present litigation. ... The court
... concludes ... that the Treaty of Peace
with Japan was intended to bar claims such
as those advanced by the plaintiffs in this
litigation."
The Committee also notes that the portion
of the ruling quoted by the Government in
the U.S. case omits the court's finding which
specifies only that the Treaty, by its terms,
adopted a settlement plan "for war-related
economic injuries." [emphasis added]
Further, the Government in its latest report
indicates that, during the period from 1
January 2001 to 30 June 2002, there were
two cases in high courts and three in district
courts in Japan involving claims by victims
of the wartime practice of military sexual
slavery. The Government indicates that the
courts "rejected the plaintiffs' claims
against the Government of Japan in all the
cases". With regard to the April 1998
judgement of the Shimonoseki Branch of the
Yamaguchi District Court, the Government
states that both the defendant and plaintiffs
appealed to the Hiroshima High Court. The
Government states that the High Court issued
its judgement on 29 March 2001, accepting
the plea of the Government and ruling that
it was not clear that the Government had
a constitutional obligation to legislate,
and that how to deal with post-war settlement
should be left to the discretion of the legislature
in terms of comprehensive policy-making.
The Government also states that the plaintiffs
appealed to the Supreme Court in March 2002
and are awaiting its final judgement.
The Committee notes that the rulings in this
case were discussed in the December 2001
judgement of the Women's International War
Crimes Tribunal: "The Hiroshima High
Court reversed the Shimonoseki judgement
on the ground that the individuals lack standing
under international law. Not only does this
Tribunal disagree with the Hiroshima court
ruling as a matter of international law;
we note also that, as a matter of principle,
international law does not extinguish domestic
law or remedies that are more protective
of human rights."
Conclusions on legal basis for individual
claims
The Committee has set out these matters in
some detail in order to reflect the complexity
of the issue and also to demonstrate the
diversity of opinions which have been expressed
as to whether there is a legal basis for
the comfort women to claim compensation.
In the view of the Committee the issue remains
an open question. The Committee notes that
the Government in the recent past has expressed
the view that such rights have been extinguished
by treaties; however, the texts quoted above
demonstrate that such a view is not necessarily
supported by independent experts.
This Committee has already previously emphasised
that it does not have power to order relief
for breach of the Convention. The Committee
in its 2000 observation, has also accepted
that "the Government is correct in stating
that compensation issues have been settled
by treaty". The Committee has however
refrained from expressing any legal view
on whether those treaties have or have not
resulted in individual claims of comfort
women being extinguished as a matter of law.
The Committee does not have any mandate to
rule on the legal effect of bilateral and
multilateral international treaties. The
Committee is therefore unable and does not
finally pronounce on that legal issue, which
is the remit of other bodies.
(c) Government response to claims of comfort
women
As to the third major issue raised by the
Government, in its report the Government
indicates once again that, in recognition
of the issue of the so-called wartime "comfort
women", it has expressed its apologies
and remorse on numerous occasions. It states
that it has cooperated to the fullest extent
possible with the Asia Peace National Fund
for Women, or "Asian Women's Fund"
(AWF) set up to provide "atonement"
money to the victims by, among other things,
bearing the operational costs of the fund
and sending letters of apology from the Prime
Minister. The Government indicates that in
September 2002 the AWF completed the implementation
of its programmes for the provision of atonement
money. The Government states that, since
October 2000, when the Government submitted
its previous views to the Committee, an additional
114 victims had accepted the atonement money,
and that the AWF has delivered atonement
money to a total of 285 victims in the Philippines,
the Republic of Korea and Taiwan.
The Committee also notes from the comments
of the trade union organizations, that in
2002 the AWF announced the closure of its
programmes. In its communication of 29 July
2002, the All Japan Shipbuilding and Engineering
Union noted that on 20 July 2002, the AWF
announced that 285 survivors had accepted
atonement money. It points out, however,
that this number does not include survivors
from China, the Democratic People's Republic
of Korea, or Indonesia, and that only some
of the survivors from the Republic of Korea,
Taiwan, the Philippines and the Netherlands
had accepted atonement money.
In their observation, the KCTU and the FKTU
point out that the "goodwill" of
the AWF is refuted by many Korean victims
who had to suffer the various "approaches"
made by Fund-related persons to persuade
them to accept the so-called "consolation
money". The union organizations point
out that, while the Fund may be an expression
of goodwill by the Japanese people, Korean
victims have not regarded the Fund and its
activities as a valid response of the Government
to their demands or as a resolution of the
legal responsibilities of the Government
under international law. They indicate further
that the AWF is perceived as an effort by
the Government to make a financial contribution
without any prior official acknowledgement
of responsibility and to evade the essential
process of an official inquiry.
In its reply, the Government refers to statements
in its report indicating, in part, that the
Government came to consider the Asian Women's
Fund as "the only feasible means for
providing a practical remedy for former 'comfort
women' who were already of an advanced age,
because the issue of claims had been legally
settled between the Governments and peoples
of the parties to the treaties and agreements".
The Government replies further, in part,
that a number of the beneficiaries of the
programmes "expressed their appreciation
in one way or another", and that the
Government considers that the Fund's programmes
"have been steadily implemented and
welcomed by a large number of the former
'comfort women' as illustrated by their words
of appreciation".
The Committee notes the 1998 final report
of UN Special Rapporteur McDougall, which
states: "The Sub-Commission [on Prevention
of Discrimination and Protection of Minorities]
has joined other United Nations bodies in
'welcoming' the creation in 1995 of the Asian
Women's Fund. The Asian Women's Fund was
established by the Japanese Government in
July 1995 out of a sense of moral responsibility
to the 'comfort women' and is intended to
function as a mechanism to support the work
of NGOs that address the needs of the 'comfort
women' and to collect from private sources
'atonement' money for surviving 'comfort
women'. The Asian Women's Fund does not,
however, satisfy the responsibility of the
Government of Japan to provide official,
legal compensation to individual women who
were victims of the 'comfort women' tragedy,
since 'atonement' money from the Asian Women's
Fund is not intended to acknowledge legal
responsibility on the part of the Japanese
Government for the crimes that occurred during
the Second World War" (appendix, paragraph
64).
The Committee has noted that organizations
seeking additional measures from the Government
have not considered the AWF to be a sufficient
response, as there has been no compensation
paid to victims directly by the Government
and no apology based on an acknowledgement
of legal responsibility towards the victims.
In view of the latest comments and indications
supplied by the Government and trade union
organizations, the Committee considers, as
it has previously, that the rejection by
the majority of "comfort women"
of monies from the AWF because it is not
seen as compensation from the Government,
and that the letter sent by the Prime Minister
to the few who have accepted monies from
the AWF is also rejected by some as not accepting
government responsibility, suggest that the
expectations of the majority of the victims
have not been met.
The Committee further notes the recommendations
of UN Special Rapporteur Coomaraswamy in
Addendum 1 to her 1996 report. Pointing out
that she "counts, in particular, on
the cooperation of the Government of Japan,
which has already shown, in discussions with
the Special Rapporteur, its openness and
willingness to act to render justice to the
few surviving women victims of military sexual
slavery carried out by the Japanese Imperial
Army", Special Rapporteur Coomaraswamy
recommended, inter alia, that the Government
of Japan should: (a) acknowledge that the
system of "comfort stations" set
up by the Japanese Imperial Army during the
Second World War was a violation of its obligations
under international law and accept legal
responsibility for that violation; and (b)
pay compensation to individual victims of
Japanese military sexual slavery according
to principles outlined by the Special Rapporteur
of the Sub-Commission on Prevention of Discrimination
and Protection of Minorities on the right
to restitution, compensation and rehabilitation
for victims of grave violations of human
rights and fundamental freedoms.
The Committee further notes the similar recommendations
in paragraphs 63-67 of the final report of
UN Special Rapporteur McDougall, as well
as those in paragraph 1086 of the December
2001 Judgement of the Women's International
War Crimes Tribunal for the Trial of Japan's
Military Sexual Slavery.
The Committee notes the comments of the KCTU
and the FKTU that the Government, despite
the repeated recommendations of the UN human
rights bodies and this Committee's observations,
there has been no change by the Government
in its approach. The Committee also notes
the comments of the All Japan Shipbuilding
and Engineering Union that aged victims are
having great difficulty in travelling to
Japan either for appearing before the court
or for negotiating with government officials,
and it expresses the fear that "most
of the victims would pass away in a few years
and that the chance of correcting the wrongdoings
of the past would be lost forever".
Final conclusions on victims of wartime sexual
slavery
This Committee reiterates that it has no
mandate to rule on the legal effect of bilateral
and multilateral international treaties and
is therefore unable and does not finally
pronounce on that legal issue. It has previously
indicated its concerns about the ageing of
the victims of the Government's earlier breach
of the Convention and the failure of the
Government to meet their expectations in
spite of similarly publicly expressed views
by other reputable bodies and persons on
the issue. The Committee repeats its hope
that the Government will take measures in
the future to respond to the claims of these
victims. The Committee asks to be kept informed
as to any relevant court decisions, legislation
or government action. The Conference Committee
may wish to consider whether to look at the
matter on a tripartite basis.
2. Wartime industrial forced labour
The Committee has previously considered the
wartime practice involving the forcible conscription
of hundreds of thousands of labourers from
other Asian countries, including China and
the Republic of Korea, to work under private-sector
control in Japanese wartime factories, mines
and construction sites. The Committee has
noted a 1946 report of the Japanese Ministry
of Foreign Affairs (MOFA) entitled "Survey
of Chinese labourers and working conditions
in Japan", which details very harsh
working conditions and brutal treatment,
including a death rate of 17.5 per cent,
and up to 28.6 per cent in some operations.
Although these workers had been promised
pay and conditions similar to those of Japanese
workers, they in fact received little or
no pay. The Committee has found that the
massive conscription of labour to work for
private industry in Japan under such deplorable
conditions was a violation of the Convention.
In its last two observations, the Committee
noted that there were still a number of claims
by former prisoners and others pending in
different instances, and in view of the age
of the victims and the rapid passage of time,
it had hoped that the Government would be
able to respond to the claims of these persons
in a satisfactory way.
The Committee notes in its latest very detailed
report, that the Government remains of the
view that, with regard to the issue of wartime
industrial forced labour, it has "fulfilled
its obligations" in accordance with
the post-war treaties and agreements it entered
into with the governments of the Allied Powers
and other governments of the Asia-Pacific
region, and that the issue has been "legally
settled" by the parties to these agreements.
As it has indicated previously, the Government
points out that it has actively promoted
friendship and cooperation with the governments
of its neighbouring countries. It refers
in particular to the economic development
assistance it has provided to the Republic
of Korea and to China. The Government also
indicates that it has formally expressed
apologies for "past history" on
various occasions, citing:
- the 1972 Joint Communique of the Government
of Japan and the Government of China, which
includes a statement that the Government
of Japan "deeply feels responsible for
the serious damage it caused in the past
to the Chinese people through the execution
of the war, and profoundly reproaches itself";
- the 1993 statement by Chief Cabinet Secretary
Yohei Kohno on the results of the study of
the issue of wartime "comfort women",
in which he said: "It is incumbent upon
us, the Government of Japan, to continue
to consider seriously, while listening to
the views of learned circles, how best we
can express this sentiment [of apology].
We shall face squarely the historical facts
as described above instead of evading them
…";
- the statement of Prime Minister Tomiichi
Murayama on the "Peace, Friendship and
Exchange Initiative" in 1994 in which
he stated that one way to demonstrate such
feelings [of apology] is "to face squarely
to the past and ensure that it is rightly
conveyed to future generations";
- the statement delivered by Prime Minister
Murayama on 15 August 1995 on the occasion
of the 50th anniversary of the war's end;
and
- the letters sent out in 2002 from Prime
Minister Junichiro Koizumi to the victims
of wartime sexual slavery. The letters state
in part: "We must not evade the weight
of the past, nor should we evade our responsibilities
for the future. I believe that our country,
painfully aware of its moral responsibility,
with feelings of apology and remorse, should
face up squarely to its past history and
accurately convey it to future generations."
The Committee notes that the statements and
expressions of apology cited by the Government
include repeated references to the expression
of an intent by the Government to "squarely
face" its past history and not to evade
its "moral responsibility".
In its 2001 observation, the Committee noted
that a settlement was reached in one of the
pending court cases, by which the contracting
firm Kajima agreed to establish a 500 million
yen (approximately $4.5 million) fund to
compensate survivors and relatives of conscripted
Chinese labourers who died at its Hanaoka
copper mine during the war, with the fund
to be administered by the Chinese Red Cross.
The Committee requested the Government to
provide additional information on this case
and its impact on similar lawsuits against
other firms.
The Committee notes the Government's indication
that is not in a position to provide the
Committee with information on the Hanaoka
case in any detail because it was a civil
law case brought by Chinese nationals against
a private company and because certain lawsuits
of a similar nature are currently pending
at the Japanese courts. The Government notes
that the settlement has not involved an admission
of any legal responsibilities on the part
of the company defendant for apologies or
compensation.
The Committee notes the comments of the Tokyo
Local Council of Trade Unions, indicating
that the implementation of the settlement
is moving forward. Kajima has set up the
Hanaoka Friendship Fund with a donation of
half a billion yen. The Council notes that
on 26 March 2001, the executive committee
of the fund held its first meeting at the
Chinese Red Cross headquarters in Beijing,
that on 27 September 2001, an initial allocation
of funds was presented to 21 survivors, and
that on 15 December 2001, a similar ceremonial
presentation was made to 40 members of the
bereaved families.
The Tokyo Local Council of Trade Unions refers
to decisions on wartime forced labour compensation
claims in three recent court rulings at the
district court level. These include two against
the Government: the judgement of the Tokyo
District Court on 12 July 2001 in the Liu
Lianren case, and a judgement of the Kyoto
District Court on 23 August 2001 in the case
of the Ukishima-Maru incident; and one against
a private enterprise: the judgement of the
Fukuoka District Court on 26 April 2002.
With regard to the judgements in the Liu
Lianren and Ukishima-Maru cases, the Council
indicates that these rulings are considered
to be major victories. It points out that,
while the court did not recognize the liability
of the Government based directly on its policy
and practice of wartime conscription and
exaction of forced labour, the rulings are
important in that they found that the Government
had a duty to rescue and protect conscripted
Chinese labourers who were the victims of
that policy and to promote their repatriation,
and because they found the Government to
be liable for compensatory damages in negligently
failing, in these cases, to meet these obligations.
The Council indicates that the Government
has appealed these rulings to the higher
courts "based on the statute of limitations
and other legal technicalities". The
Council expresses the view that the Government
"is trying to evade its responsibilities
counting out all possible legal excuses".
The Council further states that the Government
has "continued to turn down all forced
labour-related claims and demands".
In its reply, the Government indicates that,
during the period from 1 January 2001 to
30 June 2002, there were five rulings in
high courts and two rulings in district courts
in cases involving claims for compensation
from the Government over its wartime policy
of industrial forced labour, and that in
all of these cases the plaintiffs' claims
were dismissed. The Government states that,
therefore, the two favourable rulings mentioned
in the comments of the Tokyo Local Council
of Trade Unions "are very exceptional"
and "cannot be over-evaluated".
The Government has noted that "it is
not responsible for compensation claims for
damages", and that it has appealed both
rulings to the High Court. The Government
indicates that, since the claims of Chinese
and Korean nationals were "legally settled"
according to post-war peace treaties and
bilateral agreements to which the Government
of Japan was a party, the district court
rulings in the Liu Lianren and Ukishima-Maru
cases "were not based on correct understanding
of the settlement reached by these treaties,
and were completely inappropriate".
The Committee notes the judgement of the
Fukuoka District Court dated 26 April 2002,
in which the court, while dismissing the
claims against the Government, held the Mitsui
Mining Company liable for damages in the
amount of 11 million yen to each of 15 Chinese
workers because of its actions, planned and
carried out jointly with the Government,
involving the wartime conscription and exaction
of forced labour of the plaintiffs. In its
comments, the All Japan Shipbuilding and
Engineering Union points out that this is
the first case in which a court has issued
a ruling ordering the payment of damages
caused by the practice of forced labour and
forced recruitment during the Second World
War. In its opinion, the court referred to
article 5 of the 1972 Joint Communique of
the Governments of Japan and the People's
Republic of China, and to the Treaty of Peace
and Friendship between the two governments,
in which China renounced its demands for
war reparations. The court also referred,
on the other hand, to a finding that at the
time the San Francisco Peace Treaty was concluded
in 1951, the Government of China maintained
the position that individual Chinese citizens
were in a position to bring claims, and to
a public statement in March of 1995 by Qian
Qichen, then Vice-Premier and Foreign Minister,
indicating that the Government of China had
renounced war reparations claims only at
the state level, and not those of individual
Chinese citizens. The court, taking these
facts into consideration, held that it was
unclear as a matter of law whether the claims
of individual Chinese citizens had been finally
renounced, and it concluded that it "does
not recognize that the plaintiff's claim
for damages has been renounced by the Joint
Communique and the Treaty of Peace and Friendship
between the two countries".
In commenting on the judgement of the Fukuoka
District Court, the Government points out
that the court dismissed the claims against
the Government and that the court ruled that
there was a legal doubt as to whether individual
claims of Chinese nationals for damages suffered
during the war between Japan and China were
renounced by the Joint Communique of the
Government and the Government of the People's
Republic of China. The Government states
further that the judgement "is based
on the trivial and biased information which
the plaintiffs provided without considering
the views of the Government and the Government
of the People's Republic of China, regarding
the Joint Communique… and others".
The Government notes that the Mitsui Mining
Company did not accept this ruling and has
appealed it to the Fukuoka High Court, which
is examining the case. With reference to
the court's finding that, in March of 1995,
Qian Qichen, then Vice-Premier and Foreign
Minister made a public statement indicating
that the Government had renounced war reparations
claims at the state level but not those of
individual Chinese citizens, the Government
states that "this remark was reported
only by the media and has not been confirmed
by the Government of the People's Republic
of China". The Government proceeds to
cite three other remarks by Chinese government
officials reported by the media, which appear
to conflict with the March 1995 remark by
the then Vice-Premier Qian Qichen.
The Committee notes the reference of the
All Japan Shipbuilding and Engineering Union
to H.R.1198, the Justice for United States
Prisoners of War Act of 2001 ("Rohrabacher
Bill"), introduced in the 107th Congress
of the United States on 22 March 2001 in
the House, and on 29 June 2001 in the Senate,
of which the aim is "to preserve certain
actions in federal courts brought by members
of the United States armed forces held as
prisoners of war by Japan during World War
II against Japanese nationals seeking compensation
for mistreatment or failure to pay wages
in connection with labor performed in Japan
to the benefit of the Japanese nationals".
Section 3(a)(1) stipulates that courts "shall
not construe section 14(b) of the Treaty
of Peace as constituting a waiver by the
United States of claims by nationals of the
United States" against Japanese nationals,
so as to preclude such actions. The Committee
notes the union's comment that the Rohrabacher
Bill exemplifies that opinions are gaining
ground in favour of a position that the San
Francisco Peace Treaty should not preclude
individual forced labour compensation claims.
In its response, the Government states that
the Rohrabacher Bill "has serious problems
because the Bill would change the settlement
by the Treaty of Peace retrospectively. Moreover
the Government of the United States has strongly
opposed to this Bill which would violate
the obligation stipulated in the San Francisco
Peace Treaty, and would undermine the relations
between Japan and the United States".
Final conclusions on wartime industrial forced
labour
As with the victims of wartime sexual slavery,
the Committee indicates that it has no mandate
to rule on the legal effect of bilateral
and multilateral international treaties.
The Committee takes the same approach, namely,
that it requests to be kept informed as to
the outcome of the Liu Lianren, Ukishima-Maru
and Fukuoka District Court cases and any
relevant court decisions, as well as any
legislation or government action. The Conference
Committee may wish to consider whether to
look at the matter on a tripartite basis.
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