Practice Relating to Rule 150. Reparation
In the Shimoda case
in 1963, the first case in which compensation was sought in Japan for violations of the laws of war, the plaintiffs, residents of Hiroshima and Nagasaki in 1945, brought proceedings against the Japanese Government on the ground that, by signing the 1951 Peace Treaty with the Allies, it had waived their right to seek compensation from the United States for its use of atomic bombs in violation of the laws of war. The plaintiffs argued, inter alia
, that the government’s waiver of their claims obliged the government to pay them compensation itself. The Tokyo District Court ruled that, even though the aerial bombardment was an illegal act of war, individuals could be considered the subjects of rights under international law only in so far as they had been recognized as such in specific instances, such as, for example, in cases of mixed arbitral tribunals. In light of this determination, the Court concluded: “There is in general no way open to an individual who suffers injuries from an act of hostilities contrary to international law to claim damages on the level of international law, except for the cases mentioned above.” The Court went on to consider the question of whether the plaintiffs could seek redress before the municipal courts of either of the belligerent parties and concluded that considerations of sovereign immunity precluded proceedings against the United States either before Japanese or US courts.
In the Siberian Detainees case
in 1989, Japan’s Tokyo District Court dismissed claims of former soldiers and civilian employees who had been detained and put into involuntary labour in Siberia for a long time after the end of the Second World War. The claimants were seeking compensation for their labour from Japan as “power on which prisoners of war depend” on the basis of the Geneva Conventions and customary international law, but the Court dismissed the case for a lack of standing.
The judgment was upheld on appeal.
In the Apology for the Kamishisuka Slaughter of Koreans case before Japan’s Tokyo District Court in 1996, three Korean plaintiffs claimed compensation for the arrest and execution of their father and brother by the Japanese military police on charges of spying in August 1945. They argued that, as the employer of the military police, Japan was under a duty to provide compensation. The claim was based on the Japanese Civil Code and international law. The Court found that:
Regarding the existence of international customary law as alleged by the plaintiffs, neither the general practice nor the conviction (opinio juris
) that the state has a duty to pay damages to each individual when that state infringes its obligations under international human rights law or international humanitarian law can be said to exist. As international customary law as alleged by the plaintiffs cannot be determined, therefore, the plaintiffs’ claim based on international law is also without grounds.
The judgment was upheld on appeal in 1996, when the Tokyo High Court approved the statement of the lower court but limited its finding of the absence of a rule of customary law entitling individuals to compensation in the law as it was at the time of the incident. The Court emphasized:
When the incident occurred, there was no evidence of any general practice, nor the existence of opinio juris that when a State acts in violation of the obligation of international human rights law or international humanitarian law, that State has the responsibility of compensating for damages any individual who was a victim.
Therefore, the international customary law against which the appellants claim did not exist at the time of the incident, and there are no grounds for the allegation of the appellants based upon international law.
In 1998, Japan’s Tokyo District Court considered three further cases in which groups of individuals sought compensation from the Government of Japan for violations of IHL: the Ex-Allied Nationals Claims case
, the Dutch Nationals Claims case
and the Filipino “Comfort Women” Claims case
. The first two cases dealt with claims of former POWs and civilian internees, the third with claims of Filipino women who were allegedly assaulted, confined and raped as “comfort women” during the Japanese occupation of the Philippines during the Second World War. The cases were based principally on Article 3 of the 1907 Hague Convention (IV) and customary international law. The Court dismissed all three cases for lack of standing by the individuals. The Court reviewed the precise wording of Article 3 of the 1907 Hague Convention (IV) and concluded that it did not specify the methods for enforcing liability for violations nor provided that individuals had a right to claim compensation against a State in national courts. Having reached this conclusion on the basis of the language of Article 3 of the 1907 Hague Convention (IV), the Court pointed out that international law only exceptionally recognized the right of individuals to enforce their rights under international law directly and that usually this had to be done by their State of nationality by means of diplomatic protection. The Court confirmed this conclusion by a review of the drafting history of Article 3 of the 1907 Hague Convention (IV) and of its application by other States, and concluded that Article 3 could not be interpreted so as to provide a right to individuals who had suffered damages because of violations of the laws of war to bring direct claims for compensation against the violating State in domestic courts.
In the Filipino “Comfort Women” case, the Court stated:
To summarize, according to the ordinary meaning to be given to the terms in their context, Article 3 of the Hague Convention cannot be understood as a clause that entitles individual victims to bring a claim for compensation directly against a wrongdoing State. Accordingly, it is impossible to recognize that the article is a codification of a rule of customary international law.
Having considered the reconfirmation of the principle of Article 3 of the 1907 Hague Convention (IV) since the Second World War, the Court further stated:
Consequently, throughout its close examination of texts and the drafting process of Article 3 of the Hague Convention, the Court has been unable to recognize the alleged rule of customary international law that provides individual residents in an occupied territory the right to claim compensation directly against the occupying State for damages resulting from a violation of the Hague Regulations committed by members of the occupying forces.
In addition, throughout its careful survey of all records of the case, the Court was unable to find any rule of customary international law apart from Article 3 of the Hague Convention that provides the principle mentioned above.
In the Zhang Baoheng and Others case
in 2002, Japan’s Fukuoka District Court awarded US$ 1.29 million to 15 Chinese men who had been forced to work in Japan during the Second World War and who had filed a lawsuit against the Japanese Government and a mining company for compensation and a public apology. The Court ruled that the company should be held liable, but not the Japanese Government, finding that the company and the government “jointly committed an illegal act” but that the Constitution barred the Court from ordering the government to pay compensation.
In the Ko Otsu Hei Incidents case
in 1998, Japan’s Yamaguchi Lower Court ordered the Japanese Government to pay 300,000 yen each to three “comfort women” from the Republic of Korea for their enforced prostitution during the Second World War. It considered that the acts in question constituted severe violations of human rights and human dignity on the basis of the sex and race of the plaintiffs. As the Japanese Government had been aware of the violations but had not adopted legislation to compensate the plaintiffs, it was at fault and in violation of the Constitution. The Court rejected the claim for an official apology from the Japanese Government before the Japanese Parliament and the UN General Assembly on the ground that it did not have jurisdiction to make such orders. Regarding the claims of Korean women who had worked as slave labourers in Japanese factories during the war, the Court found that, unlike the situation of the “comfort women”, the suffering of the forced labourers was not so great when compared to the hardships suffered by members of the civilian population generally during the war as to have required the Japanese Government to adopt legislation to compensate them. The Court added that the labourers’ claim was within the scope of war reparation, responsibility for which was vested in the executive and the legislature and not the courts.
However, in March 2001, the Hiroshima High Court reversed the 1998 judgment and dismissed the claims for the reasons that the Japanese Constitution did not oblige the State to apologize or to legislate laws concerning the compensation as such. Referring to the State’s obligation to compensate for its omission, which had been admitted at the trial of first instance, the Court stated that a decision on the modalities of post-war compensation was a policy decision within the discretionary power of the legislature. However, it stated: “Considering the serious damage the applicants have suffered, we understand their dissatisfaction caused by the State’s omission of legislation.”
In 1993, the Chief Cabinet Secretary of the Japanese Ministry of Foreign Affairs stated, with respect to the recruitment and abuse during the Second World War of the so-called “comfort women” by the Japanese military, that “the Government of Japan would like … to extend its sincere apologies and remorse to all those, irrespective of place of origin, who suffered immeasurable pain and incurable physical and psychological wounds as comfort women”.
In 1994, the Prime Minister of Japan stated:
On the issue of wartime “comfort women” [recruited and abused by the Japanese military during the Second World War], which seriously stained the honour and dignity of many women, I would like to … express my profound and sincere remorse and apologies.
In 1995, the Chief Cabinet Secretary of the Japanese Ministry of Foreign Affairs made a statement to the effect that:
Based on our remorse for the past … the project of the “Asian Peace and Friendship Foundation for Women” will be undertaken as follows.
1. The following activities will be conducted for the former wartime comfort women, through the cooperation of the Japanese People and the Government:
i. The Foundation will raise funds in the private sector as a means to enact the Japanese people’s atonement for former wartime comfort women.
ii. The Foundation will support those conducting medical and welfare projects and other similar projects which are of service to former wartime comfort women, through the use of government funding and other funds.
iii. When these projects are implemented, the Government will express the nation’s feelings of sincere remorse and apology to the former wartime comfort women.
In 1995, the Prime Minister of Japan, with respect to the Asian Women’s Fund established in July 1995 by the proponents from the legal, academic and NGO sectors in Japan with the support of the Government of Japan to the benefit of the victims recruited and abused as “comfort women” by the Japanese military during the Second World War, offered his “profound apology to all those who, as wartime comfort women, suffered emotional and physical wounds that can never be closed”. The Prime Minister further stated:
Established on this occasion and involving the cooperation of the Government and citizens of Japan, the “Asian Women’s Fund” is an expression of atonement on the part of the Japanese people toward these women and supports medical, welfare, and other projects. As articulated in the proponents’ Appeal, the Government will do its utmost to ensure that the goals of the Fund are achieved.