Contact /Last modified: 03/10/98
1. War Responsibility and Postwar Responsibility
2. Reparations, Compensation and Claims
3. State Compensation and Postwar Compensation
Postwar management refers to the various settlements of affairs in the
aftermath of a war. Many different terms are used in relation to these
settlements, yet, their meanings are often inadequately understood or confused
with the others. This sometimes causes disruptions in postwar management.
To clearly define each term in meaning is, therefore, quite important.
Although the expression "war responsibility" may have various implications, the term, in actual usage, seems to be used primarily to refer to the responsibility for starting or waging a war of aggression (defined as criminal responsibility based on international laws). A typical example may be found in prosecution of war crimes by the International Military Tribunal for the Far East (Tokyo Trial), where only "crimes against peace" (class-A crimes) were examined among the various war crimes. Whole arguments on war responsibility were, thus, built on this premise -- questioning whether only War Minister Hideki Tojo and other class-A criminals were responsible for the war, or whether the Emperor was also responsible, and whether the general population should share responsibility.
This argument on war responsibility tended to lapse into the clich* that it was the Military and the Imperial System that were to blame, with the general population their victims. Damage by the atomic bombings of Hiroshima and Nagasaki, devastation by air raids, and postwar food shortages all brought about a widespread conscious of victimization among the population. Also, execution and punishment of some class-A war criminals following judgment by the Tokyo Trial made people feel as if the question of war responsibility had been settled. This general feeling that the past had been resolved must have been strengthened by the limited scope of awareness of Japanese at that time, when the entire society was driven for economic reconstruction
In Germany, crimes and responsibility appear to be clearly separated. Richard von Weizs ker, in his cerebrated speech "40 years in the Wilderness" stated, "There is no such thing as one race as a whole being guilty or not guilty, for both guilt and innocence belong to the individual, not the group." Here, he denied the concept of collective guilt of a race. On the other hand, it is thought responsibility can be collective, as seen in the words of philosopher Karl Jaspers, "For crimes committed in the name of the German state, every one of the Germans must accept his or her share of the responsibility. We bear collective responsibility." Weizs ker also stated in his speech: "Regardless of guilt or innocence, or of age, all of us have to take responsibility for the past. Everyone is involved in the consequences of history, and it assigned responsibility for the past." Here, he makes clear that all Germans, including those who are personally innocent, have to take responsibility. In this respect, some point out that the Japanese have never discussed the validity of collective guilt, as the Germans did (See Germany as Power State Condemns Japan by Masamori Sase, in Shokun August 1992 issue).
In any case, it is certain that Japan has not tried to rectify the past injustices for the half a century following the war. To this extent, it may be right to say all Japanese are guilty of having not fulfilled their shared responsibility to Asian victims (referred as the "second crime" in Germany).
In a panel discussion of war responsibility at a general meeting of the Study Group of Shisonokagaku (Science of Thoughts) in 1956, Professor Masao Maruyama raised questions as to 1) whom responsibility should be taken to, and 2) what kind of conduct should responsibility be taken for; should this include conduct resulting from mistakes or confusion. Based on these questions, the professor suggested to discuss the matter separately in the following four categories: criminal, moral, political and metaphysical responsibility. (War Responsibility, by Saburo Ienaga, published by Iwanamishoten)
According to Saburo Ienaga (op. cit.), war responsibility should basically be divided into issues of legal responsibility and political-moral responsibility. Legal responsibility should then be separated into questions of international or domestic law, which are further split into matters of criminal and civil cases. As for political and moral responsibility, he insists that it should be divided along state and individual lines first, then each be discussed in two different aspects -- international responsibility to other states and peoples, and domestic responsibility to its own state and people.
Such a broad approach to the concept of war responsibility, however, makes the process of specifying each cases extremely tedious. This seems to be the reason for the concept of war responsibility introduced at the beginning of this chapter has became widely accepted.
As we have seen above, the concept of war responsibility was used solely as the reasoning to condemn war leaders and bring about one-time settlements on a criminal case basis. This left the problem of Asian victims unsettled. In taking the need for compensation to Asian victims seriously, and in trying to rethink the relations between Japan and Asia, a new expression, "postwar responsibility," has emerged.
The expression "postwar responsibility" can be used, especially in the field of literature, in more general sense; "One's postwar responsibility in regard to talking about one's own war experiences and about postwar consciousness derives from them," writes Akio Takei, for example, in his book War Responsibility and Democratic Literature in the Post-war Period. Recently, however, usage of the phrase has turned into specifically indicating the obligation to recover various damages caused by past colonialism and the expansionist war, and this new usage is gaining ground. Perhaps the first to actually use the phrase in this specific sense was the Association of Rethinking Postwar Responsibility to Asia, formed by Yasuaki Ohnuma, Hiroshi Tanaka, Aiko Utsumi among others in 1983.
What is stressed here is a renewed attention to injustices and aggression during the war and colonial rule as well as the need for atonement for resulting damages and compensation. In other words, to compensate the shortcomings of the International Military Tribunal for the Far East, whose role was limited to a criminal court for "war responsibility," the concept of "postwar compensation" has emerged to bring civil case-base recovery of war damages into question. The heart of the new concept is the recognition that, with a focus on the fact that Japan was the aggressor in Asia, postwar responsibility must be borne by the nation as a whole. Because postwar responsibility is the process of atonement for past injustices, this responsibility must be questioned continually until atonement is completed. Also, in the view that atonement ought to follow critical reflection and apology by the aggressor, this process of reflection and apology must be ongoing. In Germany, we can find an expression equivalent to "postwar responsibility" in "overcoming the past." Constant struggle is required to resolve the past and avoid repeating the same mistakes.
Historically, reparations by the defeated nation have been made along with territorial and various other concessions to the victors through postwar peace treaties. Reparations can be made with money, or with provisions of materials or labor. The original purpose of reparations, or indemnities, was to enrich the winning state, punish the defeated state, and recover war expenses. In short, reparations were booty. Although such practice was approved by international law, the legitimacy and appropriateness of the nature and quantitative extent of reparations was left outside the realm of legal judgment. So the actual amounts have been determined by various factors, including the
Victory in the Sino-Japanese War in 1895 brought Japan reparations of 230 million tael of silver from the Quin dynasty. This represented four or five times the annual national budget of Japan at that time (put into current terms, based on Japan's annual budget of 70 trillion yen, the scale of the reparations is equivalent to 300 trillion yen.) This huge capital inflow virtually financed the modernization and development of heavy industry in Japan. The immense reparations of 132 billion Goldmark imposed on Germany after the First World War actually included compensation for damages caused by activities violating international law. After the First World War, reparations gained a new meaning; compensation for state damages that resulted from an unlawful war. However, this interpretation still allows the possible one-sided imposition of "unlawfulness" to the defeated states.
After the First World War, a move toward the prevention of unlawful war became clear within the underlying trend toward the humanization of laws of war. The Versailles Peace Treaty with Germany after the First World War, was the first instance where stress was put on compensation as redress for the damages caused by an illegal war of aggression.
Article 302-2 of the Versailles Treaty provided relief procedures for individual victims, and besides the traditional practice in international law of making settlements through interstate reparations, it codified another aspect of postwar management dealing with claims made by individuals against states. This is to say, through the process of postwar reparations, the rights of the state and individuals had become more clearly separate from each other, and the distinction between reparations and compensation became clearer. Compensation has more to do with atonement for crimes and is rather a moral obligation.nce where stress was put on compensation as redress for the damages caused by an illegal war of aggression.
Article 302-2 of the Versailles Treaty provided relief procedures for individual victims, and besides the traditional practice in international law of making settlements through interstate reparations, it codified another aspect of postwar management dealing with claims made by individuals against states. This is to say, through the process of postwar reparations, the rights of the state and individuals had become more clearly separate from each other, and the distinction between reparations and compensation became clearer. Compensation has more to do with atonement for crimes and is rather a moral obligation. After the Second World War, this string of thought was firmly established as an idea, putting more emphasis on compensation to individual victims rather than on reparations. In Germany, postwar management after WW II mainly dealt with compensation, while little was done in the traditional way of reparations
Some people feel uneasy about the concepts of compensation and reparations as defined here, with a view to remaining consistent with domestic Japanese criminal or civil codes, and prefer to use the term reparations even where the cases of individuals are concerned. However, in considering the Criminal Compensation Law, a Japanese domestic law, the term compensation is used for those state actions that make up for the illegal activities of its employees, and does not necessarily require as its premise that those activities be lawful. On the other hand, in the process of postwar management, "reparations" have been used for interstate liquidation as explained above. As it is confusing to use this same term to refer to the cases of individuals, I consciously apply the term "compensation" instead, which then, I believe, becomes consistent with the usage in the "Federal Compensation Law" in Germany dealing with Nazi crimes, and the historical meaning of the individual's claim for "compensation" becomes clearer.
Another element in postwar management is the need for liquidation of property relations between the suzerain and colonized states accompanying the independence of the colony or liberation of occupied territories. This is known as "management of claims." In the case of the Japan-ROK Basic Treaty of 1965, it was, as viewed the Japanese government, "economic cooperation" from start to finish, but the Korean side insisted it was management of claims. As a compromise, settlement was made in the form of "economic cooperation and a claims agreement." One thing clear here is that postwar management through the Japan-ROK Basic Treaty did not include any aspect of reparations or compensation.
In usual postwar management at the conclusion of a war, one of the typical issues is how to provide aid to the domestic victims of war. There are two approaches to this question.
One is the principle of "equal burden," meaning aid should be equally distributed, which is currently accepted by the majority of the international community. However, Japan takes another approach, the "tolerance limit theory," which argues that because modern war is total war, a certain level of war damage should be tolerated by the population, and that to whom and how the aid is provided should be left to the discretion of legislative policy makers. With this theory, Japan has established a postwar management legislation policy which limits the eligibility for aid only to those employed by the military and the like, Moreover, by means of a nationality clause, this policy excludes those Koreans and Taiwanese who were on the bottom rungs of the Imperial Japanese military.
However, such an unfair application of war victim aid is in violation of Article 14 of the Constitution of Japan (equality before the law) as well as of Article 26 of the International Covenant for Human Rights, as we will discuss in detail later. It seems inevitable that Japan in the near future will have to adopt the principle of "equal burden" in its postwar management policy. Here, the expression used when demanding the principle of "equal burden" is "state compensation."
In Japan, the movement calling for "state compensation" has been mainly carried forth by the victims of atomic bombings and air raids. Certainly, their movement is ultimately a demand for equality in aid, but beyond that, it also contains some elements related to the discussion on compensation. For their movement has maintained the argument stemming from the aforementioned theory of war responsibility, that although victims essentially have the right to press the US to take responsibility for its use of atomic bombs -- a war crime of indiscriminate attack upon an unguarded city -- the government of Japan has to compensate the victims instead, since it dismissed the individuals' claims with the conclusion of the San Francisco Peace Treaty. Here is reasoning that individual victims can use to press the aggressor state to respond, reasoning that shares the same basis as the theory for compensation.
The use of nuclear weapons is a war crime in violation of the treaties that lay down the rules of war, including treaties covering the use of armaments and prohibition of attacks on unguarded cities. In any case, movements to win state compensation have been not merely calling for "equality in aid," but also pressing Japan to answer for its war responsibility (i.e., the instigation and execution of a war of aggression).
As seen before, Japan was required to carry out compensation for its past wrongs to individuals in Asia, which it promised to do upon the acceptance of the Potsdam Declaration. Nevertheless, after nearly half a century Japan has yet to critically reflect on its past aggression and colonial rule, or provide any compensation. Only now, have calls for compensation finally started to rise from many corners of Asia. The movement has been calling for "postwar compensation", consciously adding the word "postwar" to remind of the nearly half-century of neglect.
"Postwar compensation" is currently discussed in two contexts: as a demand for equality in the aid to war victims; and as an atonement for Japan's aggression against Asia.
The former is directly a question of "equality under the law" in Article 14 of the Japanese Constitution, and the principle of equal treatment between nationals and foreigners in Article 26 of the International Covenant on Human Rights (Covenant B), but the main issue is to make the war management process more democratic.
Currently, an annual budget of about two trillion yen is allocated to aid mainly for former soldiers and civilian workers of the military, but excludes the general public and foreigners, thus challenging the very basic idea of democracy. Only now, the irrationality and unfairness incorporated in the aid policy has been brought under scrutiny through cases filed (in Osaka and Kyoto) by Korean residents in Japan who were disabled in the war when they served as Japanese soldiers, and by Taiwanese who also served as Japanese soldiers. Also recently, a case was filed in Kyoto District Court by South Koreans who had been detained with fellow Japanese soldiers in Siberia for long after the end of the war and then, just as other Japanese detainees had been, sent back to Japan to live in Kyoto. They are claiming illegality of the Japanese government's aid policy, which excludes them from eligibility for aid due to their nationality.
The latter, atonement for aggression, is a question of the international laws of humanity, which call for moral behavior by states in warfare. Even in war, which is easily lost to anarchy, there are standards that warring states should comply with. The basic principles, including the prohibition against indiscriminate killing of civilians and the violation of human rights of residents in occupied areas, have increased in importance as the development of sophisticated weapons has led to modern warfare. Also influenced by a strengthening consciousness of human rights, these principles have developed into national laws of human rights. A typical example, the 1907 Hague Convention Respecting the Law and Customs of War on Land, and many others, such as the Geneva Convention Relative to Protection of Prisoners of War, have been concluded. Japan has ratified many of them.
Besides these written treaties, the existence of customary international
laws is also important. In particular, what provided the standard for the
International Military Tribunals in Tokyo and N renberg were the customary
international laws for war crime: Class-A war crime indicates "crimes
against peace"; Class-B war crime indicates narrowly defined "war
crimes" breaching the aforementioned international laws of humanity;
and Class-C refers to the "crimes against humanity." Crimes against
humanity, put simply, engage customary international law that invoke sanctions
when a state inflicts systematic persecution on ethnic or other groups
in times of war. Further, this general and important provision was the
final result of the aforementioned stream of international laws of humanity.
It can safely be said that these "crimes against humanity" form
the basis of a general trend of expanding and strengthening international
human rights, which has been the most important task for the United Nations
following the Second World War. Japan approved the results of the Tokyo
International Tribunal with its acceptance of the San Francisco Peace Treaty.
Also, the Constitution of Japan requires the observation of customary international
law as taking precedence over domestic law.
Meanwhile, customary international law, including "crimes against
humanity" will lose consistency unless it becomes a standard not only
for civil sanctions providing for relief from damages, but also for criminal
sanctions against war crimes. This has been sought by former soldiers and
civilian employees of South Korean nationality for the Japanese military,
including military comfort women (filed December 1991), and by Koreans
left in Sakhalin (August 1990). These cases claim that when the state persecutes
oppressed peoples or certain groups of people, for example, forcing individuals
to serve as comfort women, they have to be compensated.
As seen above, movements for postwar compensation include those focusing
on demands for equality in aid to war victims, and those focusing on the
recovery of justice based on international laws of humanity. Movements
demanding compensation, discussed in Part Two, fall into either of the
two.
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