Chapter Five: Legal Grounds for Postwar Compensation


1. Compensation Deduced from the Potsdam Declaration

2. Compensation Deduced from the Constitution of Japan

3. Why Japan Has Neglected Postwar Compensation

4. Rights of Individuals for Compensation and Claims


[Index]

1. Compensation Deduced from the Potsdam Declaration

Postwar Japan began, as is generally agreed, with the acceptance of the Potsdam Declaration on August 15, 1945. This acceptance enabled Japan to put an end to the battle against the Allied Forces in the form of unconditional surrender, and the contents of the Declaration indicated the course and responsibility of postwar Japan.

The Potsdam Declaration was drawn up on July 26, 1945, based on discussions between deputies of the US, China and the UK. In Article Eight, it demanded provisions of the Cairo Declaration be carried out. Therefore, the Japanese government fully accepted as well the contents of the Cairo Declaration of November 27, 1943.

The Cairo Declaration, jointly made by US President Theodore Roosevelt, Chinese Generalissimo Chiang Kai-shek and British Prime Minister Winston Churchill, read as follows:

All Three Great Allies are fighting this war to restrain and punish the aggression of Japan, not for any national self-interest or from ambitions for territorial expansion.

This clearly identified the cause of the war against Japan as recovery of justice, and condemned those injustices committed by Japan. Then, the Cairo Declaration was followed by a requirement for restitution of territories Japan seized through its aggression:

It is their (the Allies) purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the First World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed.

Further to be noted is the employment of an expression, rather exceptional for an international declaration, in specific reference to the virtual slavery of Korean people: " The aforesaid three great powers, mindful of the enslavement of the people of Korea, are determined that in due course Korea shall become free and independent. "

The intention of the Potsdam Declaration to mandate the fulfillment of the provisions of the Cairo Declaration should then be interpreted as a clear demand for restitution of not only in regard to territories but also damages caused by Japanese aggression. For example, the part, "Korea shall become free and independent" means more than the mere abandoning of colonial rule over the Korean Peninsula: it should be understood as implying all the help necessary to make Korea independent under the principle of self-determination. To restore the original condition of those enslaved, it is not sufficient to release them from the yoke. It is purely a natural obligation to provide every measure necessary to bring back pre-slavery conditions.

Thus, it should be interpreted that with the acceptance of the Potsdam Declaration, Japan agreed not just to liberating the Korean Peninsula from its colonial rule since 1910, but also to carrying the burden of restoring damages it inflicted under colonialism. In practice, besides the return of cultural property, for those numerous Koreans who were forcibly moved to foreign countries as laborers, soldiers, or military comfort women, Japan must go beyond their simple release, returning them, along with the remains of those who died, back home and providing compensation for damages deriving from these acts.

In this way, the acceptance of the Potsdam Declaration should be interpreted as an admission by Japan that it invaded Korea and other Asian regions, inflicting criminal actions on humanity, and as an acceptance of the demands made by the Allied Nations to take measures to redress the damages. War responsibility means questioning those crimes of aggression and repression against Asian countries. Postwar responsibility means fulfilling the responsibility for returning the status-quo-ante of the victims (i.e., providing compensation). The acceptance of the Potsdam Declaration confirmed that war responsibility and postwar responsibility are the very starting point of postwar Japan.

Therefore, the first step postwar Japan should have taken was to compensate Asian victims. A determination to create a peaceful and democratic country that would never repeat the war of aggression, through the process of correcting the past injustices, would have been the most valuable starting point for postwar Japan.

2. Compensation Deduced from the Constitution of Japan

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Here I will explain how the Constitution of Japan reconfirms the responsibility for compensation established by the Potsdam Declaration as the starting point of postwar Japan.

The Constitution of Japan, promulgated on November 3, 1946, claims in its preamble an idea, which is well appreciated, despite its rigid wording.

At the beginning of the preamble, it states a determination never to let the government repeat a disastrous war, and never to resort to a war of aggression, thereby preventing the damages and victimization such a war would bring about. To ensure the effectiveness of this determination, it is necessary to reveal the entire picture of the war inflicted by Japan and to recognize exactly the reality of the government's actions during the war. Thus, it is important to carry out properly the responsibility deduced from this (See War Responsibility , by Saburo Ienaga, published by Iwanami-shoten).

The preamble continues, " We desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth," a famous section important for the consideration of the internationalization of Japan. There is no doubt that Japan was the abuser, inflicting " tyranny and slavery, oppression and intolerance " upon Asian nations throughout its "Fifteen-Year War," beginning with the onset of its military invasion of China in 1931. This was confirmed by the Potsdam Declaration, which acknowledged the slave-like conditions of the Korean People, and by the San Francisco Peace Treaty (1952).

The Constitution declares that serious effort to recover damages caused by Japan's " tyranny and slavery " and " oppression and intolerance " (namely, compensation) is a precondition for Japan to occupy an honorable place in the international community. Put another way, it is obvious that Japan will not be able to secure any honorable place in the international society as long as it ignores the Asian victims of its "tyranny and slavery, oppression and intolerance."

The preamble also states, " We believe that no nation is responsible onto itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations. " Thus, it is unacceptable, also on the basis of national moral precepts, to concentrate on only domestic citizens, ignoring foreign nationals in the redress of war damages.

Thus, I understand that most parts of the preamble of the Constitution demonstrate Japan's determination to reflect upon its past war of aggression and commit to the recovery of consequent damages.

3. Crimes against Humanity

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Recovery of Justice after the Second World War

After the Second World War, countries neighboring Germany prosecuted the Nazis for their wrongdoings and persecutions, forcing Germany to compensate the victims. This was not just an impeachment of the defeated by the victors, but a result of efforts to restore principles of morality to the international community in a concrete way. At the N*renberg Tribunal, not only Nazi leaders, but lawyers, doctors, bureaucrats and businessmen were also convicted. The convictions were based on international rather than domestic law.

War crimes, as defined by international law, are composed mainly of conventional war crimes (in violation of international law protecting human rights) and crimes against humanity. The former, conventional war crimes, includes violations of the Geneva Convention Relative to the Treatment of Prisoners of War; the Geneva Protocol Prohibiting the Use of Asphyxiating, Poisonous and Other Gases and of Bacteriological Methods of Warfare; and the 1907 Hague Convention Respecting the Law and Customs of War on Land, which provides comprehensive regulation of methods of warfare (ratified by Japan in 1912). The Hague Convention of 1907 codified limits on the methods and means of war, and prohibited the attack and plunder of unguarded cities, unlimited or unpaid requisitions (cash payments and issuance of receipts were mandated ), and the taxation of occupied areas. Important here is that it is clearly stated that countries whose military violated these provisions regulating war must pay compensation for damages arising from those violations, as seen in Article Three:

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.

Regarding compensation for war damages, however, what should be more emphasized than the narrowly-defined conventional war crimes are the general crimes against humanity.

The attempt to outlaw wars of aggression began with the Geneva Protocol regarding the peaceful settlement of international disputes, concluded in October 1924 (not effectuated). With the Kellogg-Briand Pact of August 1928, which renounced war as an instrument of national policy, war of aggression was internationally banned. Here, concepts of crimes against peace and humanity were established in international law.

In the International Military Tribunals of Tokyo and N*renberg, convictions of war criminals mainly concerned crimes against peace (Class-A), conventional war crimes (Class-B) and crimes against humanity (Class-C). Of these, "crimes against humanity" was defined as follows:

murder, extermination, enslavement, deportation, and other inhumane acts committed before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Thus, they tried to establish an idea that represented international moral standards: if a state systematically persecuted certain racial groups in times of war, the state should be punished --regardless of any legal disguise within the state-- on the grounds of crimes against humanity. This idea deserves high respect as the most important result of efforts to restore international justice after the Second World War, and should be placed as the fundamental of the current that seeks to establish international human rights to this day.

On the other hand, the restoration of international justice required more than the criminal sanctions imposed given by the N*renberg Tribunal. Then-US Secretary of Treasury Morgenthal submitted to the US President a report before the verdicts of the N*renberg Trial had been reached, recommending that Germany be made to compensate for its wrongdoings, including crimes against humanity, following the criminal sanctions. As a result, partly due to pressures from the US and Europe, West Germany committed itself to providing compensation, mainly through the Federal Compensation Act and Federal Repayment Act, for Nazi injustices.

Article One of the Federal Compensation Act provides this definition of victims of persecution:

" Victims of Nazi persecution refers to those who were persecuted by Nazis on the basis of their political opposition, race, religion or world view, and as a result suffered from damages to their lives, bodies, health, freedom, possession, property or vocational advancement. "

From this definition, it seems obvious that this Act is a domestic codification of international civil sanctions against crimes against humanity. Also, West Germany has concluded a number of international pacts, including one with the State of Israel and the Jewish Congress, as well as a comprehensive pact with 12 neighboring states including France, providing compensation to victims in those countries. Among these pacts, the Luxembourg Pact, concluded on September 1952 between West Germany, Israel and the Jewish Congress, states in its preamble:

The State of Israel and the Federal Republic of Germany successfully concluded the following agreement in consideration of the indescribable crimes committed during the brutal rule of the Nazis, that the government of the Federal Republic of Germany has expressed its will to compensate for the material damages caused by those actions within Germany's capacity to pay, in the state declaration at the federal assembly on September 27, 1951, and that the State of Israel, which has taken on the burden of accepting so many Jewish refugees from Germany and areas formerly controlled by Germany who had been uprooted and lost assets, can claim for compensation for a part of the expenses arising from this to the government of the Federal Republic of Germany " (translated from Japanese text)

Thus, this pact is also for compensation as part of the civil code sanctions against damages resulting from crimes against humanity. Although given to the State of Israel, the funds are aimed at facilitating the resettlement of uprooted Jews, and at recovering the damages to individuals. Thus, it should be seen as compensation to individuals via the State of Israel.

The cumulative amount of compensation provided by Germany has exceeded 60 billion dollars. Several states within West Germany and a few private enterprises such as Krupp and Deimler-Benz also have participated in the efforts to atone for the past.

These are some examples of what compensation to individuals, as opposed to interstate reparations, is.

Committing crimes against humanity is an obvious breach of international law, and if the responsibility for the breach lies with the state, it must take responsibility for any compensation for international illegalities. Also, the right to make claims for recovery of damages caused by such violations of international law, in my opinion, belongs to the individual victims rather than the state to which they belong. In other words, I believe victims of internationally unlawful acts are bestowed with the right to make claims for compensation through international law. Based on this theory, victor states of a war should also be held accountable for compensation if they committed wrongdoings during the war. It was in this vein that the US and Canada since 1988 have admitted the injustice in their relocating residents of Japanese lineage during the war, and have provided compensation of 20,000 dollars (21,000 Canadian dollars in Canada) for each victim, with an apology. In the US, this was achieved through a minority citizen's movement of Japanese-Americans, who were armed with the human rights provisions in the US Constitution, rather than having to resort to the international idea of crimes against humanity. On the third floor of the American History Hall in Washington, one corner is dedicated to the historical issue of relocation of Japanese Americans during the war. At the entrance, the Hall has the US Constitutional Amendments hung large, demonstrating that the essence of America is found in the attitudes that always seek perfection, refusing to accept the current situation as perfect. This is to say, the issue of Japanese-Americans has been treated as a constitutional issue of discrimination. However, this issue also falls within the realm of international crimes against humanity, as it occurred during a war against peoples then considered to be hostile, and thus the persecution was based on discrimination. No one can deny that it shares common features with the persecution of Jews by Germans, and it raises the question of why the issue of relocation of Japanese-Americans has not been discussed in terms of war crimes committed by the US. However, it is still appreciable as a serious effort to made by the US to correct injustices in its own history, in order to establish standards of international morality and carry out the responsibility of postwar compensation based on international law.

The Concept of Crimes against Humanity

Crimes against humanity provided in Article Six-C of the Charter of the International Military Tribunal for N*renberg comprise murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian, before or during the war, or persecution on political or racial grounds. These are recognizable as war crimes under international law even if they followed legal procedures provided by domestic law, as the Charter states: "whether or not in violation of the domestic law of the country where perpetrated." For instance, even though the Holocaust was based on a lawful decision by the cabinet of the Third Reich, or though the forced labor of Koreans was in compliance with the General Mobilization Law of Japan, these actions can still be convicted as crimes against humanity if they are recognized as persecutory actions.

In other words, it is rather ordinary for crimes against humanity not to violate domestic laws because they are systematic persecutions inflicted by the state. The target of such crime is not a particular individual, but those individuals or groups that represent certain ideologies or racial characteristics, which the ruling system wishes to annihilate.

As such crimes are inflicted indiscriminately upon anyone who satisfies the criteria of certain ideologies or racial characteristics, de Manton, the French chief prosecutor at the N*renberg Tribunal, aptly described these crimes as being "directed against the human condition." Also, famous law scholar Gustav Radburch, the first justice minister of the Weimar Republic, conceptualized crimes against humanity as follows:

The Nazis' crimes violated humanity in all three of its meanings. Not only did these crimes involve countless inhuman acts of abuse and insult, but the rooting out of the educated class of Poland was an example of purposeful destruction of humanity as signified by culture. We must bring to light these crimes against humanity in all three of their meanings. That is, abuses against human existence, insults against human dignity, and the destruction of human culture. From this understanding of the meaning of these crimes, we see that they are crimes against all humanity. (Cited from "Thinking over the N*renberg Tribunal", Kensuke Shibata in Kokugakuinzasshi, No.4, vol. 89)

Therefore, in the N*renberg Tribunal, Class-C crimes against humanity were given more emphasis than Class-A crimes against peace or Class-B conventional war crimes, and none of the 12 convicts who received the death penalty were exempt from the guilt of Class-C crimes. Also, in succeeding trials of the N*renberg Tribunal, the largest number of convictions among other war crimes were based on crimes against humanity.

The first usage of "crimes against humanity" is perhaps found in the Paris Peace Conference after the First World War. The Versailles Treaty includes the following:

The war started on August 1, 1914 was the greatest crime against humanity and the freedom of people in the history of crimes committed intentionally by civilized states." "Settlement of the war should be based on crimes against humanity and rights; otherwise it should be unfaithful to those who devoted themselves to the freedom of the world if we are content to settle it on another basis . (Translated from Japanese text).

So, the concept of crimes against humanity was established after the First World War. In confirming this, steps taken during the Second World War cannot be overlooked.

US President Theodore Roosevelt and British Prime Minister Winston Churchill, on October 25, 1941, made simultaneous statements that they were prepared to retaliate for the war crimes inflicted by Germany. Following this, on August 21, 1942, Roosevelt announced to the Axis powers a warning that criminals must stand before the jurisdiction of the countries they are currently subjugating, and pay the penalty for their deeds.

In this regard, more detailed views were expressed in the London Declaration made by nine allies (Belgium, Czechoslovakia, the National Committee of Free France, Greece, Luxembourg, Norway, Poland and Yugoslavia) on January 13, 1942.

From the start of the current world war resulting from the policy of aggression of Germany, Germany has established a system of terror in the occupied areas. This system is characterized by, above all, imprisonment, mass expulsion, execution of hostages, and mass atrocities. ......(the participants of this agreement) 1) conclude that these violent acts inflicted upon civilians go against the generally accepted ideals concerning laws of war and political crime as conceived by people in civilized countries and 2) make it one of the main war aims of the Allied countries to punish those who committed or are responsible for these crimes -- regardless of whether they ordered, executed or were involved in the crimes-- through an organized judiciary method. ( Translated from Japanese text)

In regard to Nazi atrocities, especially those inflicted upon citizens, the declaration by the nine states was significant in that it demanded more than simply punishing the executors of conventional war crimes, calling for criminal accountability of the higher authorities who held responsibility for such crimes (See "A Note on Crimes against Humanity Provided in Article Six-C of the International Military Tribunal," Masayoshi Shimizu, in Tokyo Jogakukan College Bulletin ).

Even after these war crimes-- including those against humanity-- had been punished as violations of international law by the N*renberg Tribunal, Germany preserved accountability for them in its domestic law in order to continue prosecution of war criminals. Especially for crimes against humanity, the same provision as Article Six-c of the IMT was included in the German criminal code, Law No. 10 (issued on December 20, 1945). Moreover, in eliminating the phrase "before and during the war" from the provision, the specific connection with conventional war crimes was dropped, allowing the law to be applicable to cases concerning the persecution of Jews, oppression of political enemies, and murder in the name of euthanasia, irrespective of other conditions concerning war, such as the planning, initiation, and execution of a war of aggression.

Including crimes against humanity in its domestic criminal code in this way, Germany enacted as well the Federal Compensation Act and the Federal Repayment Act in its civil code.

What Crimes Against Humanity Means for Japan

As we have seen earlier, there was a concept of crimes against humanity as the ideological or legal basis for the serious measures taken for compensation in Germany and the US. However, in both countries, no specific discussion to establish a clear connection to crimes against humanity took place, due to the fact that in Germany much had been done through treaties, pacts and legislation relating to compensation, such as the Federal Compensation Act, and that in the US, the movement was carried out in defense of the constitutional rights of minority citizens.

From the beginning, in Germany, with its Weimar Constitution, then considered the most democratic of the time, it was only natural that if the state committed some wrongdoing, the victimized citizens, who have sovereign rights, ought to be able to claim reparations from the state.

However, in Japan, the old Meiji Constitution (1889-1945) represented absolutism, where the sacrosanct emperor monopolized the sovereign power, subjugating the entire population. In such a system, even if employees or the military of the Imperial state committed offenses in their enforcement of power, it was impossible for victims to claim reparations for the damage by the state. This is known as the principle of "unaccountability of the state."

It was thus difficult to press the state to be accountable in civil cases because of the domestic code of Japan at that time. This became an obstacle for cases of war crime, making it very difficult to force state accountability on the basis of domestic law for the damages to other peoples that resulted from the systematic persecution by Japanese military or government.

Even so, Japan was still obligated to comply with customary international law as it had ratified various treaties and established international relations. As far as these obligations were concerned, therefore, the aforementioned principle of "unaccountability of the state" should have lost validity and the state should be considered as having been accountable for reparations for its unlawful acts based on civil codes. This is why Asian victims have accused the Japanese government on the basis of crimes against humanity, which is provided for both in customary international laws and in international treaties for human rights.

4. Rights of Individuals for Compensation and Claims

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Where the Problem Lies

Currently, war victims demanding compensation rely on various theories for their struggles in court. Reasoning based on domestic law includes 1) loan claims for outstanding salaries for soldiers, local yen notes used by the Japanese military (gunpyo), and postal savings forced on people in occupied areas; 2) ex post facto application of the State Reparation Law or application of a civil code against unlawful activities of the state (Civil Code 709); and 3) appeals to the state's sense of morality and justice. Although these arguments and the government's responses to them are quite interesting, we do not have space here for details.

More important are theories based on international law. When the military of a warring state has attacked in violation of international law, the question of the victim's rights to claim compensation against the aggressor state should be discussed as two separate points.

The first point concerns whether the aggressor state is responsible for compensating individual victims. In this situation, it does not matter whether the state to which the victims belong invokes its right to diplomatic protection or not. Unless this point has been established, we cannot proceed to the next point of the validity of the individual's claims to compensation.

The second point concerns whether claims can be made only by the states, or also by individuals. In other words, does international law provide individual victims with the right to claim compensation from the aggressor state in the latter's court? This is the very point that ongoing compensation trials, including those filed by former military comfort women, are arguing.

Responsibility of the Aggressor State

Here, I am going to argue that the first point above -- a state that commits war crimes must compensate for the damages of its victims-- is an unquestionable, established, international principle.

Article Tree of the Hague Convention Respecting the Law and Customs of War on Land of 1907 clearly states:

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.

This embodies the universal principle:

the inhabitants and belligerents remain under the protection and the rule of the principles of nations, as they result from the usage established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

Japan ratified the Hague Convention in 1912. However, even had Japan not ratified it, it would still have had to observe the provision, as the convention had its origins in established international customs. Because of this, despite the provision of Article Two that requires all warring states to be party to the Convention in order for it to be binding, the Convention was applied to the First and Second World Wars, which involved states that were not parties to it.

This principle of international law was immediately applied to the First World War, started just after the Convention was signed. The Versailles Treaty after the First World War condemned German war acts as a "supreme offense against international morality and the sanctity of treaties," and concluded, with the consent of Germany, that Germany and its allies were solely responsible for all the losses and damages to states and populations resulting from the war (Article 27). Japan, which was then in the victor's camp, was one of 15 countries forming a committee to determine the war crimes, and made a claim against Germany for an estimated sum of damages to the Japanese state and individual victims. A mixed arbitrary court was then set up to facilitate restoration of damages to individuals.

There are many cases of states making compensation to individual victims for damages resulting from their aggression in violation of international law. The following are just a few examples.

1) In 1873, the vessel Virginia carrying the US flag, was captured on the high seas by the Spanish navy and taken to Santiago, Cuba, where 21 Americans were shot dead and 32 were detained. In compensation, Spain paid 60,000 dollars to the US.

2) In 1891, the US ship Baltimore, then docked in Chile, was attacked by an armed group that killed two Americans and injured more than 50 people. The following year, the government of Chile paid 75,000 dollars to the US government and 10,000 dollars for each victim, payable to their bereaved as compensation.

3) For the victims of the Boxer Rebellion in China in 1900, the US made compensation claims of 5000 dollars for each adult.

4) In 1904, during the Russo-Japanese War, a Russian warship bombed a group of English fishing boats off Dogger Bank, killing two and injuring six crew members. The Russian government later paid 65,000 pounds in compensation.

The Penney Incident

Another example, where Japan was involved, is the Penney incident. On December 12, 1937, during the Japanese attack on Nanjin, the Japanese naval air force bombed and sank the US guard ship Penney that was sailing on the Yangtze River, killing two and injuring 57 people. The US government made claims of 2.21 million dollars in compensation, including 10,000 or 15,000 dollars for each death, varying amounts of compensation for injuries depending on the degree of injury, and compensation for the vessel and other material damages.

There was an immediate outcry from the US public, with some even demanding that diplomatic ties with Japan be severed. However, a forthright apology and swift acceptance of compensation demands by then-Foreign Minister Koki Hirota and vice-Navy Minister Isoroku Yamamoto, without any furtive attempts to lessen responsibility in the process of investigation, improved US public sentiment toward Japan, even resulting in an increased positive estimation of Japan.

The Awamaru Incident

In contrast to the Penney incident, the Awamaru incident was an example of the Japanese government making a claim against the US on behalf of individual Japanese. On March 30, 1945, a private Japanese vessel Awamaru, which was in charge of shipping Red Cross relief supplies for prisoners of war captured by the Allied Forces with a guarantee of safe passage, was attacked and sunk by a US submarine on its return voyage home. All but one of the 2004 member crew were killed in the attack. Upon learning of this, the Japanese government lodged a complaint via Switzerland, a neutral country, and demanded an apology from the US government, punishment of those responsible for the accident, and reparations for lives, the vessel and other material damages. As the US tried to delay its response, anticipating an imminent end to the war, the Japanese government sent a message to the US on August 10, 1945:

Concerning the issue of reparations, the US government has proposed postponing the negotiations until after the end of war on the basis of what they see as the complicated nature of the matter. However, this incident is a clear and special case for which the US government is solely responsible, and because the US government has once admitted its responsibility, reparations for human and material damages resulting from the accident should be swiftly carried out regardless of the existence of war conditions, not just as the US government's responsibility to the Imperial government of Japan, but also as a humanitarian obligation of the US government to the individual victims of the accident.

The Japanese government then sent a bill (see table ) classifying the 2003 victims into four categories. As one dollar was exchanged for four yen at that time, the bill was equivalent to from 12,500 to 50,000 dollars for each death (55 million dollars in total).


Table: Details of the Reparations Claim against the US (August 10, 1945)

(1) Compensation totaling 195.115 million yen for the lives and belongings of the 2,003 passengers and crew members (identified at that time) classified into the following four categories:
Number of people Per person (yen) Total sum (yen)
Highest rank 18 200,000 3,600,000
Upper rank 689 150,000 103,350,000
Middle rank 287 100,000 28,360,000
Lower rank 1,009 50,000 50,450,000
total 2,003 186,100,000
plus an average of 5,000 yen for personal belongings and cash to each victim
2,003 X 5,000 10,015,000
Total 196,115,000
(2) Allowance from April to late July to the family of Kantaro Shimoda (an additional charge will be made in the case of a delay in payment) 1,600
(3) Compensation for 9,812 tons of cargo on the Awamaru 30,370,000
(4) Estimated earnings of Awamaru by the time a replacement ship is provided (monthly 200,000 yen from April to late July) 800,000
Grand total 227,286,600
(5) Replacement ship for the Awamaru

Considering that the bill was sent on August 10, 1945, the day the Japanese government decided to accept the Potsdam Declaration, it seems the government considered the incident as a card it could play in its postwar negotiations with the US. This is analogous to the official protest by the Japanese government in denouncing as a breach of international law the use of atomic bombs on Hiroshima and Nagasaki, which was an attempt to protect the Imperial system by taking advantage of US sensitivities to the issue.

That the US provided huge amounts of aid, including food to war-ruined Japan after the war, was not irrelevant to the Awamaru Incident. The Japanese Diet passed a resolution on April 7, 1949 concerning "the abandonment of claims of the Japanese government relating to the Awamaru incident" (proposed by Hiroyoshi Hirokawa and six other members of the Diet). The resolution requested the Japanese government abandon all the claims relating to the Awamaru Incident as a means of expressing the profound thanks of Japanese citizens to the US for its abundant aid to facilitate the recovery and reconstruction of Japan. Immediately after the resolution, Japan and the US, under the arbitration of Supreme Commander MacArthur, concluded an agreement on claims management of the Awamaru Incident. In the agreement, the Japanese government promised to abandon all the claims by the Japanese state and its citizens and to make efforts to provide appropriate treatment through "consolation money" to the bereaved of the dead. As a result, a law concerning this compensation for the Awamaru Incident was passed and 70,000 yen (the current equivalent is about 530,000 yen) was paid for each death.

However, there was also a clandestine interstate deal in addition to the public Japan-US agreement on the Awamaru Incident. It was agreed that the Japanese government would be liable for occupation expenses and state loans and credit extended by the US after the war, and the amount of liability could be reduced only by the US. This meant that Japan was made responsible for paying back the postwar US aid, including bread and skim milk powder made available through the GARIOA EROA Fund (Government and Relief in Occupied Areas & Economic Rehabilitation in Occupied Area). The amount of repayment was reduced to 1.8 billion dollars after offsetting loans to the US, including the bill for the Awamaru Incident. In this way, the Awamaru Incident, war crimes of the US and subsequent claims for individual compensation undoubtedly played a significant role in overcoming the postwar food shortage in Japan. Nevertheless, the Japanese people have not been informed of this behind-the-scenes-deal and the government has paid only 70,000 yen to the bereaved of the each victim, obviously violating the rights of the victims" families. (see Why did the Awamaru sink? Kimichika Matsui, published by Asahi Newspaper Company).

The San Francisco Peace Treaty

It is now obvious that there is international law providing that victims of war crimes should be compensated by the aggressor state. In this sense, the provisions in Article 14 of the San Francisco Peace Treaty effectuated in 1952-- (a) It is accepted that Japan should make reparations to the Allied states for the damages and sufferings it inflicted during the war, and (b) the Allied states drop claims for direct military expenses during the occupation as well as claims of Allied states and their populations arising from activities of Japan and its people during the war-- are clearly based on, as their premise, the existence of the right to claim compensation by individual victims of violations of international law. The problem of the San Francisco Peace Treaty is, as remarked repeatedly, that despite its acknowledgment of the individual's right to compensation claims, it did not give consideration to the compensation for the violation of the individual victim's rights, due to the US policy constructed within the framework of the Cold War. This reveals itself in the notes to Article 14-(a):

Also, if we are to maintain a viable economy however, it must be acknowledged that Japan currently does not have enough resources to carry out complete reparations for all the aforementioned damages and suffering while at the same time paying back its obligations. (translated from Japanese text)

Namely, it is saying that although Japan is indebted to individual victims of its war crimes and owes compensation, in considering the current shortage of money in Japan, the Allied states will not invoke diplomatic protection in order to collect money for individual victims. However, the abandonment of claims by the Allied states should not be on a permanent basis. If the reasoning was a "current shortage of resources," it may have implied future repayment when the state recovered its ability to do so. This waiver clause is in consideration of the historical lesson that showed how an attempt to make Germany immediately pay the reparations and compensation it owed after the First World War allowed the rise of Nazis, and is not intended to release the Japanese state from all responsibility for war compensation. Even if the state claims could be abandoned for political reasons, compensation claims of individual victims can not be deprived by their own state as they are based on basic human rights.

Actually, the Japanese government, in September 1945, signed a protocol regarding a solution to private claims with Holland, one of the Allied states, in which Japan voluntarily offered ten million dollars to the government of the Kingdom of Holland as a consolation to its citizens to express Japan's compassion and regret for the torment Japan inflicted on the Dutch people.

Is It Possible to Make Individual Claims?

As explained above, there exists an international principle that individuals have the right to claims, which are then collected by the state to which they belong and distributed to them later. However, it is questionable whether individual victims can also demand direct compensation from the aggressor state.

In court cases concerning postwar compensation, attorneys for Japan handling accusations against the Japanese state reject the claims made by individuals, arguing that it is only states which can use the violation of international laws to make accusations. It is true that only states can be party to international law as viewed by traditional legal theories. When the Hague Treatment was concluded in 1907, emperors and kings possessed the rights of their peoples, and compensation claims were made only by states. At that time, there was a legal assumption that regarded a violation of rights of individuals as a violation of the state they belonged to . This legal assumption enabled the state to exercise the individual rights of its citizens, but the shortcoming of the system was in not allowing individuals to use their rights directly.

However, since the 1920s, with the spread of democratic thought, there has emerged a current recognizing the right of individuals, as victims of war crimes, to make claims. As illustrated above, in both the Penney and Awamaru Incidents, in which Japan was involved, the states made diplomatic efforts to exercise the rights of their citizens, but if Japan utilized its diplomatic protection for certain political purposes, thus violating individual rights, as in the case of the Awamaru Incident, I believe those individual victims can push both Japan and the US to respond, as the deception was consented to by both states. There is evidence indicating that customary international law that acknowledges claims to compensation as an individual right emerged in the 1930s in line with the establishment of the concept of war crimes: Germany has provided direct compensation to individual victims of the Nazi regime through laws such as the Federal Repayment Act and the Federal Compensation Laws, and the US and Canada have made apologies and provided compensation for their indiscriminate relocation of Japanese descendants and Aleutes and the confiscation of their property. The Japanese government accepted the results of the trials of class-A, -B and -C war criminals of the International Military Tribunal for the Far East through Article 21 of the San Francisco Peace Treaty. This indicates the Japanese government accepted the concept of class-B and -C war crimes as well as the conduct, falling under the category of crimes, of Japan and its military, dropping its questioning of the very existence of crimes against humanity (class-C) and against peace (class-A) as established international customary laws. Therefore, the state has no right now to criticize the Tokyo Trial as having applied laws retroactively, or as an unfair trial by the victor, as some people insist. Since after the Second World War in particular, international laws have progressed with more emphasis on the rights of individuals. The legal maxim, "a violation of rights of individuals should be compensated by those who committed the violation," should be applied to relations not only between individuals but also between the state and individuals. Thus, international laws mandate that Japan guarantee basic human rights. In August 1993, a report submitted by Professor Valle Boven to the UN Human Rights Committee stated that human rights and basic freedoms should be respected and that any state violating international laws which guarantee these rights and freedoms be held responsible for the redress of damages, and that victims themselves, families or others who have an appropriately close relationship to the victims should be able to make claims for compensation for damages.

It is now evident that individuals have the right to make compensation claims, and the state to which they belong can also invoke its diplomatic protection to require the aggressor state to pay. However, if the victim's state forgoes its rights to diplomatic protection, or abandons the claims for political reasons, as found in the cases of Japan and other Asian countries, the human rights of those victims cannot be protected unless they make claims directly for compensation. With its efficient bureaucracy, which relentlessly whittled down postwar compensation debts by taking advantage of the weakness of the victimized states, Japan has developed into one of the most powerful economies in the world owing to this reduction in the burden of compensation. Now, the people of Asia, independent of their subjugated governments, or rather, discovering their own inherent rights, are now trying to exercise these rights.


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