Volume 5 | Issue 3 | Article ID 2369 | Mar 01, 2007 The Asia-Pacific Journal | Focus

Japan's Top Court Poised to Kill Lawsuits by Chinese War Victims

Kang Jian, William Underwood

Japan’s Top Court Poised to Kill deadlines, even as courts have routinely Lawsuits by Chinese War Victims found that the Japanese state and companies engaged in illegal forced By William Underwood and Kang Jian labor. The key question of whether Chinese victims have standing in [At a moment when the “comfort women” Japanese courts at all has been largely controversy is dominating the growing sidestepped—until now. global discussion about Japanese war responsibility, the Japan Supreme Court During a trip to Beijing last month, is set to permanently foreclose the Japanese lawyers handling the forced possibility of redress for Chinese war labor lawsuits warned plaintiffs and the victims within the Japanese court system. Chinese media to brace themselves. The Japan’s top court will hold a special Supreme Court will likely decide that the hearing on March 16 in a compensation Joint Communique signed by and lawsuit brought by Chinese forced labor Japan in 1972, or the Sino-Japanese survivors against Nishimatsu Peace Treaty signed by and Japan Construction Corp. and the Japanese in 1952 (also called the Treaty of ), government. If, as expected, the Supreme or both, waived the right of Chinese Court rules that the victims’ right to file individuals to seek redress from the the claim has been extinguished by state Japanese government or corporations. treaties, it will ensure final defeat for all Although Beijing has never officially lawsuits by Chinese victims filed in interpreted the 1972 accord as allowing Japanese courts. lawsuits against Japan, China’s foreign minister stated in 1995 that the Joint Compensation claims for forced labor Communique waived only the Chinese have been the most common, and most government’s reparations claims against successful, type of lawsuit within the the Japanese government, while leaving wave of litigation by Chinese plaintiffs the claim rights of private Chinese that began in 1995. District courts have citizens intact. issued compensation rulings on three occasions, while the Hiroshima High Japanese lawyers, historians and citizen Court ordered Nishimatsu to pay activists have vigorously supported the plaintiffs in 2004. Most claims have been more than two dozen lawsuits filed by rejected due to state immunity and filing Chinese victims of biological warfare,

1 5 | 3 | 0 APJ | JF abandoned chemical weapons, the war victims via national legislation and a Nanjing massacre, the Pingdingshan compensation fund, the approach by massacre, indiscriminate aerial bombing, which Germany and Austria have recently military sexual slavery, and forced labor come to terms with Nazi-era forced labor. in Japan. Nearly all suits have failed, but If the Japan Supreme Court does end the many Japanese judges have engaged in Japanese judicial phase of the Chinese historical “fact-finding” instead of reparations movement, a vital vehicle for rejecting claims without comment. This educating the Japanese public about their has produced an incontrovertible record nation’s inadequately understood past of Japan’s war conduct where little or will be lost. An important source of nothing existed before. For example, potential pressure on the Japanese state whereas the Japanese government today and industry to sincerely address victims’ insists it knows nothing about the claims will be removed. activities of Unit 731, a Tokyo court concluded that the unit killed many Chinese through biological warfare and human experimentation. And while Mitsubishi Materials Corp. describes Chinese at its wartime coals mines in Japan as well-treated voluntary workers, a Fukuoka court confirmed they were victims of brutal forced labor.

Forced labor survivors and supporters outside the Fukuoka High Court in 2004, after the court overturned their compensation award. Kang Jian is holding envelope at left.

Yet the reparations campaign is sure to continue, and may even intensify, as the focus of efforts shifts to China. The The former Unit 731 headquarters in Pingfang is Chinese government has recently allowed now a museum, located families of former forced laborers to form about 47 kilometers outside Harbin, the capital of a support group for redress activities, Heilongjiang Province (former Manchuria). and permitted establishment of the Non- Governmental Fund to Support Lawsuits Japanese judges have occasionally even by Victims of the Japanese Army’s War of suggested that the government should Invasion. The fund was tapped last proactively settle claims from Chinese November to bring the largest-ever

2 5 | 3 | 0 APJ | JF delegation of 86 forced labor survivors against Japan more actively, especially if and supporters to Japan. In early 2006 (as the article below explains) Tokyo is the Chinese government announced via seen to be challenging Chinese state-controlled media that, in an sovereignty over Taiwan. Without greater unprecedented step, it would soon allow state-level support from Chinese leaders, former forced laborers to sue Japanese the reparations claims are likely doomed corporations in Chinese courts. A new to failure. That would make meaningful group, the Non-Governmental Chinese reconciliation between the two nations Association for Claiming Compensation even more difficult, as the descendents of from Japan, was launched and the best- actual victims carry on the redress known advocate of the private struggle and acrimony toward Japan compensation concept, Tong Zeng, was becomes entrenched at the level of named as its head. national identity.

The first prospective plaintiff was also Chinese attorney Kang Jian is known as named by Chinese media last year, but the “window” between Chinese claimants Beijing authorities have so far failed to and Japanese supporters advancing their follow through on their promise of a legal efforts in Japan. Since becoming domestic judicial arena for redress. A aware of the comfort women redress Chinese lawyer told the New York Times movement at the UN Beijing Conference last fall that the Chinese government is on Women in 1995, Kang has been in the waiting to see how the Japan Supreme forefront of the All China Lawyers Court rules. Compensation lawsuits in Association’s pursuit of compensation for Chinese courts could produce a public forced labor and other Japanese war relations disaster for Japanese crimes. She has traveled around the companies, especially for firms inclined Chinese countryside to help select the to deny the historical reality of forced most effective plaintiffs for lawsuits in labor even as they pursue contracts in Japan and frequently testified in Japanese China, although the Chinese state has courtrooms. Kang’s article focuses on the previously made clear that it will not Japan Supreme Court’s upcoming hearing allow organized consumer boycotts. and provides a map of the legal landscape involved, even as the The popular legitimacy of the Chinese reparations question is ultimately moral Communist Party depends in part on its and political in nature. – William taking a firm stand against rising Underwood] Japanese nationalism and historical revisionism, and 2007 marks the The basis of the “Abandonment of the seventieth anniversary of the start of the Right to Claim” argument and the Sino-Japanese War and the Nanjing reason for the Japan Supreme Court’s Massacre. This could lead to increased special March 16 hearing bottom-up pressure on the Chinese government to back reparations demands By Kang Jian

3 5 | 3 | 0 APJ | JF

Among the lawsuits filed by Chinese war victims in Japanese courts seeking compensation from the Japanese government and corporations, eight cases are now in the process of being decided by the Japan Supreme Court (excluding the lawsuits already decided by the Supreme Court). Of these eight cases, seven are appeals by Chinese victims who refused to accept judgments by Japanese high courts. The other case is the appeal by the Japanese government and Nishimatsu Construction Corp., which refused to accept the Hiroshima High Court decision requiring them to compensate the forced labor victims. Although we filed written requests to hold hearings long ago, the Supreme Court has not scheduled any hearings in Map showing 135 Chinese forced labor sites in the cases appealed by the Chinese Japan victims. Instead, the court recently decided (on January 15, 2007) to hear the A. Background to emergence of the case appealed by Nishimatsu defense argument, “abandonment of Construction Corp. and to hold a session the right to claim” for debating whether the Chinese government has, on behalf of Chinese 1. Nullification defenses of “statutory citizens, given up the right of individuals time limitation” and “state to claim compensation. immunity”

We must pay close attention to why the Since June 1995, Chinese war victims Supreme Court has chosen to hear the have filed lawsuits in Japanese courts in appeal by Nishimatsu Construction, and Tokyo, Sapporo, Kyoto, Nagano, why the special session will focus on Fukuoka, Niigata, Gunma, Yamagata, whether the Chinese citizens’ right to Miyazaki and Kanazawa, seeking claim has been abandoned. compensation from the Japanese government and Japanese corporations. The lawsuits involve cases of massacre, indiscriminate bombing, abandoned chemical weapons and shells, Unit 731’s experiments using live human subjects and its deployment of germ bombs, “comfort women” and cases of forced

4 5 | 3 | 0 APJ | JF labor. There have been 27 cases in total. forced labor victims versus the Japanese Before 2002, the Japanese government, government and Nippon Yakin Kogyo as perpetrators, avoided facing the truth Corp. (decided on January 15, 2003). and taking responsibility by using the Although Kyoto District Court did not pleas of ”time limitation” and “state support the claim by Chinese plaintiffs in immunity” in its defense. The Japanese that lawsuit, the decision rejected the corporations involved adopted a similar defense of “state immunity” for the first approach. Before 2000, verdicts issued time. In cases later decided by the Tokyo by Japanese courts simply followed the High Court, Fukuoka High Court and Japanese government’s assertions and Niigata District Court, the Japanese ruled against the Chinese plaintiffs. government’s claim of “state immunity” was also rejected. Moreover, in all of the On July 12, 2001, the Tokyo District decisions reached by the Japanese courts, Court, using the basic legal principle of the facts of atrocities committed have equity and justice, for the first time been acknowledged as proven by the rejected the defense of “time limitation” evidence given by the Chinese plaintiffs. put forward by the Japanese government and recognized the claim made by the From the above mentioned facts, we can Chinese forced labor victim Liu Lianren. see that the lawsuits seeking This result was achieved through the compensation from Japan have been efforts of Chinese and Japanese lawyers, slowly making progress. The trend of scholars, Japanese citizen support groups acknowledging the plaintiffs’ claims has and the plaintiffs. Thereafter, courts been gradually forming. applied the basic legal principle of equity and justice and rejected the “time 2. Emergence of the defense limitation” defense in the following cases: argument, “abandonment of the right Chinese forced labor victims versus the to claim” Japanese government and Mitsui Mining Corp. in Fukuoka District Court (decided At the end of 2002, when the lawsuits on April 26, 2002); Chinese forced labor launched by the Chinese victims had victims versus the Japanese government been under way for seven years, a new and Rinko Corp. in Niigata District Court defense argument was used by the (decided on March 26, 2003); Chinese Japanese government. It was asserted victims of abandoned chemical weapons that “the plaintiff’s right to claim for and shells abandoned in China versus the personal compensation has been Japanese government in Tokyo District abandoned as the result of treaties.” This Court (decided in September 2003); and argument is called “abandonment of the Chinese forced labor victims versus right to claim.” Nishimatsu Construction in Hiroshima High Court (decided on July 9, 2004). 1) Using the Sino-Japanese Peace Treaty as its basis, the Japanese government Also important was the case of Chinese proposes that the Chinese people have

5 5 | 3 | 0 APJ | JF abandoned the right to claim. member of the treaty. The treaty has no binding effect on China. On , 1952, the Japanese government signed the Sino-Japanese 2) Further, the San Francisco Peace Peace Treaty with Taiwan. The treaty Treaty has not altogether negated the recognized the principles of the San right to claim of individuals. Francisco Peace Treaty. Some people contend that the right to claim of During both the lawsuits involving individuals has been waived by the San Japanese detained in Siberia and atomic Francisco Peace Treaty, but that treaty bomb victims, the Japanese government has no such written provisions. expressed its position had always been that what was abandoned (here referring 2) The Japanese government holds that to the San Francisco Peace Treaty) was the Joint Communique of the Government not the individual right to claim, but the of Japan and the Government of the right to claim by the government on People’s Republic of China was signed behalf of the individual, in seeking (on September 29, 1972) on the grounds compensation from another nation (the that the Sino-Japanese Peace Treaty had right of diplomatic protection). But in already resolved the issue of war similar lawsuits with Chinese as compensation, and that the issue of plaintiffs, the Japanese government compensation should not be brought into offered a totally different interpretation. discussion again. Therefore, Japan holds, This practice of a double standard reveals the right to claim of the Chinese with the duplicity of the Japanese government regard to the war had long been in dealing with war responsibility. abandoned with the signing of the Sino- Japanese Peace Treaty. 3) The Sino-Japanese Peace Treaty was void, and even at the time when it was signed it was of limited application.

As defined in an official exchange document attached to the Sino-Japanese Peace Treaty, the treaty could only apply to territory actually controlled by the Former forced laborers and family members at Republic of China then and in the future. the Beijing Fang Yuan Law Office Therefore the Sino-Japanese Peace in 2000, prior to filing redress lawsuits in Fukuoka. Treaty is not applicable to the People’s Republic of China. B. Rebuttal of the defense argument, “abandonment of the right to claim” Moreover, in 1972 when China and Japan restored diplomatic relations, the 1) China has not signed the San precondition was that the Japanese Francisco Peace Treaty and is not a government agreed there was only one

6 5 | 3 | 0 APJ | JF

China. It was under this precondition that Therefore, as stated above with regard to diplomatic relations between the two lawsuits brought by Chinese plaintiffs, countries were restored and the Joint district and high court rulings before Communique was signed. Article 2 of the 2005 in places such as Tokyo, Fukuoka, Communique states, “The Government of Niigata, and Hiroshima did not support Japan recognizes the Government of the the Japanese government’s position of People’s Republic of China as the only “abandonment of the right to claim.” legitimate Government of China.” Now C. The trend in Japanese courts the Japanese government is using the Sino-Japanese Peace Treaty it signed with On March 18, 2005, Tokyo High Court Taiwan as its defense. This is an act that supported for the first time the Japanese violates its position defined in the Joint government’s position of “abandonment Communique. of the right to claim” in its ruling on the second batch of Chinese “comfort 4) The Joint Communique has not women” cases. The decision states that in abandoned the right to claim of the 1952 when the Sino-Japanese Peace individual. Treaty was signed, the government of the Article 5 of the Joint Communique signed Republic of China was the “proper by the Japanese and Chinese government” and the treaty it signed with governments in 1972 states, “The Japan was valid. That is, in the court’s view, the provision on war compensation Government of the People's Republic of is applicable to all of China and not China declares that in the interest of the restricted to certain territories. It follows friendship between the Chinese and the that the Sino-Japanese Peace Treaty is Japanese peoples, it renounces its applicable to mainland China. This demand for war reparation from Japan.” judgment by the Tokyo High Court It is public knowledge that claimants clearly violated the law and is arising from wars include states, groups provocative. It provides the world a and individuals. This is due to the dangerous signal from Japanese judicial characteristics of damages. Individual or circles. It was in this context that the group property cannot be substituted by Japan Supreme Court proposed to debate state property. By the same token, the the issue of “abandonment of the right to individual’s right cannot be claim” on March 16. unconditionally taken over by the state. D. Conclusion Any abandonment of the right should be expressed clearly. In the Joint As the party responsible for launching Communique the Chinese government that brutal war of invasion, the Japanese did not declare that it abandons the right government has never sincerely to claim for Chinese citizens on their examined its role in the war, or accepted behalf. the unavoidable responsibilities for the

7 5 | 3 | 0 APJ | JF war. Some Chinese war victims, with the [email protected]. Kang Jian is an support of conscientious Japanese attorney with the Beijing Fang Yuan Law lawyers and citizens, filed lawsuits in Office and a member of the All China Japanese courts, hoping to solve through Lawyers Association’s Committee for the legal process this important issue left Redress Claims against Japan. She by history. This, in fact, has provided an provided this article for Japan Focus. opportunity for the Japanese government Posted at Japan Focus on March 2, 2007. and the Japanese corporations involved to correct past wrongs without losing face. Additional information is available at the Unfortunately, the Japanese government website of Canada ALPHA (Association and corporations have not valued this for Learning and Preserving the History opportunity. Instead they have employed of WWII in Asia). all means and spared no effort to avoid shouldering responsibility. When their Other Japan Focus articles by William excuses have been refuted one after Underwood on forced laborers in Japan: another, they proposed this new trick, “abandonment of the right to claim.”

Some Japanese judges, in order to absolve the Japanese government and corporations of their responsibilities, Chinese Forced Labor, the Japanese have gone so far as to cause a diplomatic Government and the Prospects for crisis by violating the position of “one Redress China” as established in the Joint Mitsubishi, Historical Revisionism and Communique, concluding that the Japanese Corporate Resistance to Chinese plaintiffs’ right to claim has been Chinese Forced Labor Redress abandoned through the signing of the Sino-Japanese Peace Treaty with the NHK's Finest Hour: Japan's Official Taiwan government. If this excuse Record of Chinese Forced Labor receives unjustifiable support from the Supreme Court of Japan, it will in effect Names, Bones and Unpaid Wages (1): put an end to all lawsuits filed by Chinese Reparations for Korean Forced Labor in war victims. Japan

Names, Bones and Unpaid Wages (2): Seeking Redress for Korean Forced William Underwood, a faculty member at Labor. Kurume Kogyo University and a Japan Focus coordinator, recently completed his doctoral dissertation at Kyushu University on the topic of Chinese forced Norma Field, The Courts, Japan's labor redress. He can be reached at 'Military Comfort Women,' and the

8 5 | 3 | 0 APJ | JF

Conscience of Humanity.

9