JPRI Working Paper No. 82, November 2001
POW Forced Labor Lawsuits Against Japanese Companies
by Kinue Tokudome


On Saturday, September 8, 2001, the San Francisco Opera House hosted the 50th anniversary celebration of the signing of the Peace Treaty ending the Allies' war with Japan. However, on September 7, three former prisoners of war, Dr. Lester Tenney (81), Mr. Frank Bigelow (79), and Mr. Edward Jackfert (79) sat in a room filled to capacity in the Palace Hotel in downtown San Francisco where a commemorative seminar on the Peace Treaty was being held. They and other former American POWs are plaintiffs in lawsuits asking for compensation from Japanese companies that used them as forced laborers.

Titled "The Weight of History-Japan, the United States, and the Legacy of the Second World War," the meeting was moderated by Professor Ezra Vogel of Harvard University and the panel of speakers included former U.S. Ambassador to Japan, Thomas Foley, former Japanese Ambassador to the U.S., Nobuo Matsunaga, and Congressman Michael Honda (D-CA). Dr. Tenney and his fellow former POWs wanted to confront Mr. Foley who, while serving as Ambassador to Japan, declared that POWs could not sue Japanese companies because their claims had been waived by the Peace Treaty. They believe that their individual claims against Japanese companies have not been waived; and their spirits were boosted by a long New York Times op-ed article that appeared on September 4, 2001, in which Steven Clemons, executive vice president of the New America Foundation, revealed that a secret agreement was made between Japan and the Netherlands explicitly not waiving individual rights of Dutch citizens to make claims against Japan. Under the peace treaty, any benefit granted to one signatory is automatically extended to all. Thus the American POWs came to the seminar full of anticipation that the panel would engage in a serious discussion of their cases.

However, Professor Vogel contrived to run out of time before such a discussion could take place. It seemed to some listeners that the panel could have addressed at least some of the important issues relating to the POW lawsuits had he not first spent time on questions such as, "What about the claims of African Americans for slavery or those of Native Americans?" It struck this listener as unconscionable that he picked these questions first over the ones posed by the actual victims of Japan's wartime conduct who, in spite of their advanced age, had traveled long distances to participate in the event. This article presents the discussion that I believe should have taken place during that standing-room-only seminar in San Francisco.

Background

In July, 1999, the state of California enacted a law in force until 2010 that allows any Second World War forced labor victim or heir of a victim to bring an action against the entity for whom that labor was performed (California Code of Civil Procedure, Section 354.6). Since that time, more than thirty slave labor lawsuits have been filed against almost sixty Japanese companies.

Most of the cases were moved to federal court by the defendants' counsels and consolidated under the U.S. District Court in Northern California (Master MDL Docket No. 1347). There, on September 21, 2000, all the cases filed by former Allied POWs were dismissed by Judge Vaughn Walker, who argued that the plaintiffs' claims were barred by the Peace Treaty of 1951 (In re World War II Era Japanese Forced Labor Litigation, 114 F. Supp. 2nd 939 [N.D.Cal. 2000]). His ruling followed closely the "Statement of Interest" filed by the U.S. Justice Department against the plaintiffs in which the U.S. government claimed that the Peace Treaty and War Claims Act (War Claims Act of 1948, Pub. L. 80-896, 62 Stat. 1240 [1948], War Claims Act, amendments Section 1, Pub. L 82-203, 66 Stat. 47) completely supplanted the plaintiffs' claim ("Statement of Interest of United States on Plaintiffs' Motion to Remand," filed on May 23, 2000).

In the cases of victims from those countries that were not signatories to the Peace Treaty, Judge Walker took a year to rule that they also should be dismissed (In re World War II Era Japanese Forced Labor Litigation, Master MDL Docket No. 1347, Order No. 9, September 19, 2001). For the Philippine victims, he ruled that their claims were barred by the 1956 bilateral agreement between Japan and the Philippines. For the Chinese and Korean victims, he ruled that the California statute on which they had based their complaints was unconstitutional because it "infringes on the federal government's exclusive power over foreign affairs." All the plaintiffs whose cases were dismissed by Judge Walker are now planning to appeal to the 9th Circuit Court of Appeals where they hope for a more thorough legal analysis.

In addition, there are four cases that were successfully remanded by plaintiffs to the state courts. Three were consolidated into one case under the Superior Court of Orange County in California (Master Docket No. 814430), where in May 2001, Judge William McDonald ordered the defendant companies belonging to the Mitsui and Mitsubishi groups and the plaintiffs consisting of a former POW and two widows of former POWs to enter into mediation. In the fourth case remanded to the state court, Los Angeles Superior Court Judge Peter Lichtman on September 16, 2001, rejected the defendant's motion for a Judgment on the Pleadings (Jae Won Jeong v. Onoda Cement Co. Ltd., et al., Superior Court of the State of California for the County of Los Angeles, Case No. BC 217805). Lichtman ruled that the 1951 Peace Treaty did not and does not bar the claims of the plaintiff, a naturalized Korean American, because he was not a citizen of the Unites States at the time that the Peace Treaty was signed. He also rejected other arguments that the claim intruded upon the foreign relations powers of the federal government, and that federal law preempted the plaintiffs' claims. (The ruling by Federal court judge Walker five days later upholding these arguments does not bind state cases.)

Two other cases were filed in U.S. federal courts against the government of Japan. On September 18, 2000, a lawsuit was filed by former "comfort women" from Korea, China, the Philippines, and Taiwan for damages and acknowledgment of illegal conduct (Hwang Geum Joo, et al. v. Japan, United States District Court for the District of Columbia, Case No. 00-CV-2233). The government of Japan as well as the U.S. government argue that the government of Japan is immune from the jurisdiction of the U.S. court. At the first hearing, on July 20, 2001, Judge Henry H. Kennedy Jr. heard the arguments presented by both sides on the issue of "sovereign immunity."

On September 4, 2001, a former U.S. POW filed a class action lawsuit with a U.S. federal court in Chicago against the Japanese government seeking $1 trillion in compensation for wartime suffering at the hands of the Japanese Imperial Army (Melvin H. Rosen and Ethel Blaine Millet, on behalf of themselves and all others similarly situated v. The people of Japan, Case No. 01C6864, District Court for the Northern District of Illinois Eastern Division). This case argues that the Peace Treaty did not waive individual claims even against the government of Japan because "Japan knew or should have known when signing the Treaty that the United States lacked power under the Constitution of the United States to waive the claims of any private citizen" (Ibid.).

Does the Peace Treaty Waive Individual Claims?

In the Orange County case, in which Judge McDonald ordered plaintiffs and defendants to engage in mediation, the defendant companies are still trying to have the case dismissed. However, this consolidated case highlights some of the legal issues that are common to all the POW lawsuits. The plaintiffs allege that they were forced-labor victims under California Code of Civil Procedure section 354.6. Accordingly, they and others in their class believe they are entitled to the present value of wages and benefits that should have been paid at the time their labors were performed. They also argue that "Defendants willfully and wrongfully misappropriated and converted the value of Plaintiffs' labor and its derivative profits into their own property. Defendants are therefore liable for the reasonable value of their services under established principles of quantum meruit and international tort law." And "Defendants have unjustly enriched themselves through Plaintiffs' free labor. Plaintiffs, therefore, have a just and lawful claim for the disgorgement of profits under established principles of unjust enrichment."

The defendants seek a dismissal on grounds that the claims asserted in the lawsuit were finally resolved by the Peace Treaty with Japan. They also argue that "Plaintiffs' claims intrude upon the foreign relations powers of the federal government," that federal law preempts plaintiffs' claims, and that the "political-question doctrine" forbids judicial inquiry into the U.S. government's resolution of World War II reparation claims.

Although the defendants present three other defenses, I will discuss only the Peace Treaty defense in this article. Did the Peace Treaty waive the claims of U.S. nationals against Japanese nationals? Two provisions of the Peace Treaty are at issue. Article 14(b) stipulates: "Except as otherwiseprovided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war and claims of the Allied Powers for direct military costs of occupation." Article 26 provides: "Should Japan make a peace settlement or war claims settlement with any State granting that State greater advantages than those provided by the present Treaty, the same advantages shall be extended to the parties to the present Treaty."

The plaintiffs argue that "the 1951 Treaty was not intended to, and does not, waive these 'national versus national claims.'" Their argument is as follows

1. The defendants' interpretation of Article 14(b) would violate rules of construction based on constitutional principles. The U.S. Supreme Court has long observed and held that treaties must be construed and applied consistent with, and without overriding, constitutional limitations. A treaty must therefore be construed to avoid the taking of property without due process of law.
2. Article 14(b) does not extinguish "national" claims, but only addresses the waiver of diplomatic protection under international law. A government's authority to waive its own claims against private foreign nationals arising from the abuse of its nationals is, as a matter of international law and practice, fully distinguishable and separate from the right of those nationals to pursue their own claims against such private foreign nationals under domestic law.1
3. Article 14(b) does not encompass plaintiffs' claims because these claims do not arise from actions "taken in the course of prosecution of the war."
4. Any waiver of the plaintiffs' claims was annulled by subsequent pacts. Japan entered into agreements with several countries in which it did not waive claims by their nationals against Japanese nationals. To the extent Japan provided better treatment to those nations and their citizens, similar advantages are automatically extended to the United States under Article 26.

The defendants responded:

1. The plain language of Article 14(b) bars plaintiffs' claims. The interpretation of a treaty is governed by federal law. If a treaty's text is unambiguous, it must be given its plain meaning. The language of the Peace Treaty clearly and unambiguously waives plaintiffs' claims.
2. Plaintiffs' claims clearly arose in the course of the prosecution of the war. This interpretation of Article 14(b) is consistent with international law, which recognizes that the treatment of POWs by enemy nationals is an element of war.
3. The negotiating history and conduct of the parties confirm that the Treaty waives plaintiffs' claims.
4. Article 26 is irrelevant. Article 26 applies only to the "parties" to the Treaty, which are "States," not individuals. Plaintiffs are not parties to the Treaty, and may not invoke Article 26. The United States has never concluded that any of these agreements Japan entered into confer a"greater advantage" than the Peace Treaty and thus the United States has never formally invoked its rights under Article 26.


The U.S. Congress Takes Up the POW Lawsuits

As these lawsuits were being filed, some members of Congress became incensed by the double standard that the U.S. administration seemed to be adopting toward German slave-labor litigation and the Japanese POWs. The Clinton administration played a facilitating role in the negotiations between Nazi slave-labor victims and the German government and companies that led to the creation of the German Slave Labor Foundation.

On June 28, 2000, the Senate Judiciary Committee held a hearing on the POW lawsuits. Chairman Orrin Hatch (R-UT) explained that the purpose of the hearing was to raise questions about why the administration responded differently to the lawsuits against Japanese companies than it did to the German cases. Senator Hatch wanted to know why the Justice Department had filed a statement of interest in the Japanese POW lawsuits while it declined to do so in the German cases.

David Ogden, Acting Assistant Attorney General, who was the author of the statement of interest, answered the Committee. "It is true that the Department of Justice was invited to state the views of the United States concerning the impact of various post-war treaties with Germany on the cases brought by World War II era slave and forced laborers against German companies. The United States did not, however, decline the court's invitation on the basis of a conclusion 'that these actions were not barred from proceeding.'" He explained that the reason his department did not file a statement of interest for the German lawsuits was because "the negotiations over creation of a German foundation to compensate victims were then at a 'very delicate' stage, and the United States negotiators were hopeful that the talks could reach fruition shortly. If successful, of course, a settlement would render resolution of the legal issues unnecessary. In contrast, the foreign policy agencies of the United States are not involved in any negotiations concerning the claims of American prisoners of war in Japan, and the decision to file, at the request of and in close consultation with the State Department, stemmed from the United States' obligation to carry out what it believes are clear treaty commitments."

Senator Hatch, not fully satisfied by this explanation, then asked, "How can the government waive the rights of individuals? . . . Can the federal government do that . . . and actually take away their rights without giving them a chance to be heard?" Answering that question, Ronald Bettauer, Deputy Legal Adviser of the State Department, said, "The government has had the power to address the claims and settle the claims against foreign nations of citizens for some 200 years under our system. There are many cases . . . which have upheld the espousal power of the United States to take up the claims of the citizens and to settle them." Referring to the San Francisco Peace Treaty, Mr. Bettauer went on to testify, "The overarching intent of those who negotiated, signed and ultimately ratified the treaty was to bring about a complete global settlement of all war-related claims in order both to provide compensation to the victims of the war and to rebuild Japan's economy and convert Japan into a strong U.S. ally. . . . Although we sympathize with those who have brought the lawsuits and acknowledge that they have suffered great injuries in the service of their country, we are convinced that the treaty precludes these lawsuits and that we have no legal basis upon which to approach Japan or its nationals for additional compensation for war claims."

He also added, ". . . the United States confiscated approximately $90 million worth of Japanese-owned assets-assets owned by the Japanese government and the Japanese private nationals, including companies-and used the proceeds to satisfy the monetary claims of U.S. nationals who were victims of Japanese aggression." This was the War Claims Act of 1948, but Senator Hatch declared in his opening statement that the amount then paid to POWs-$1.00 a day for missed meals and $1.50 per day for lost wages-was in the eyes of most people clearly inadequate.

Another issue raised during the hearing was the interpretation of Article 26 of the Peace Treaty. Senator Dianne Feinstein (D-CA) asked, "Has Japan provided more favorable terms to other nations in connection with settlements of war claims than you now assert were provided in the 1951 treaty?" Mr. Bettauer did not give a straight answer to this question but tried to explain that Article 26 was meant to deter the Japanese from dealing on favorable terms with the Soviet Union. As he explained more about the historical background of Article 26, Senator Feinstein interrupted him and said, "You didn't answer my question."

Mr. Bettauer still did not answer whether Japan had signed such treaties, but Professor Harold Maier of Vanderbilt University, who specializes in international law, testified via a written statement. "I have reviewed at least eight treaties in which the Japanese government has extended 'more' favorable treatment to other nations than it did to the United States with respect to United States claims on behalf of its injured nationals." Professor Maier concluded that Japan can now be asked to extend that same favorable treatment to claims by United States nationals.

The hearing concluded with Senator Hatch asking officials from the Departments of State and Justice to reassess their position on the Peace Treaty. Yet within a few months, the Justice Department filed yet another statement of interest favoring the Japanese defendants. Having seen no change in the positions of the State and Justice Departments, both houses of the United States Congress passed a resolution in December 2000 calling on the administration to put forth its best efforts to facilitate discussions designed to resolve all issues between former members of the U.S. Armed Forces who were prisoners of war and forced into slave labor for the benefit of Japanese companies during World War II and the private Japanese companies who profited from their slave labor (S. Con. Res. 158). Still, there were no signs of such discussions taking place.

On March 22, 2001, after the 107th Congress opened, Congressmen Dana Rohrabacher (R-CA) and Michael Honda (D-CA) introduced the Justice for United States Prisoners of War Act of 2001 that would require the federal courts to hear cases filed by former POWs against Japanese companies. It provides:

"In any action in a Federal court brought by one or more members of the United States Armed Forces held as a prisoner of war by Japan during World War II against one or more Japanese nationals (including entities organized or incorporated under Japanese law or any affiliates of such entities organized or incorporated under the laws of any State) seeking compensation for mistreatment or failure to pay wages in connection with labor performed in Japan by such United States prisoners of war to the benefit of such Japanese nationals (or their predecessors) during World War II, the court

1. shall apply the applicable statute of limitations of the State in which the action is pending; and
2. shall not construe section 14(b) of the Treaty of Peace with Japan as constituting a waiver by the United States of claims by nationals of the United States, including claims by members of the United States Armed Forces, so as to preclude the pending action" (H.R. 1198).

A Senate version of the same bill with the same title was introduced by Senators Robert Smith (R-NH) and John Warner (R-VA) on June 29, 2001 (S. 1154). The House version had already garnered 190 co-sponsors as of mid-September. As an indication of the prospects for its passage, on July 18, 2001, Congressman Rohrabacher introduced an amendment to the Departments of Commerce, Justice, and State, the Judiciary, and related agencies appropriations Act, 2002, that would prevent the Departments of State and the Justice from opposing POW lawsuits. It reads:

"None of the funds made available in this Act may be used by the Department of Justice or the Department of State to file a motion in any court opposing a civil action against any Japanese person or corporation for compensation or reparations in which the plaintiff alleges that, as an American prisoner of war during World War II, he or she was used as a slave or forced laborer."

Congressman Christopher Cox (R-CA) argued against this amendment, adding that the Bush administration opposed it. He also introduced a letter written by former Secretary of State George Shultz to the House of Representatives. It reads in part:

"I express my opposition to the bill against the background of tremendous sympathy for the problems of the United States' citizens who have in one way or another been harmed, many severely, in the course of war and its sometimes dehumanizing impact. But the bill in question would have the effect of voiding the bargain made and explicitly set out in the Treaty of Peace between Japan, the United States and forty-seven other countries. President Truman with the advice and consent of the Senate ratified the Treaty and it became effective April 28, 1952. The Treaty has served us well in providing the fundamental underpinning for the peace and prosperity we have seen, for the most part, in the Asia Pacific region over the past half-century" (Congressional Record, July 18, 2001, H4170).

In the end, Congressman Rohrabacher's passionate plea for support for "the greatest heroes of American history, who were betrayed by their own government during World War II" won the day and the amendment was adopted overwhelmingly with 395 votes (33 opposing). A similar amendment was passed in the Senate on September 11 by 58-34 votes. As of October, 2001, this amendment is in a conference committee that will decide whether or not it will remain in the Commerce, Justice, State Appropriations Bill when it becomes law.

In addition to the Justice for the United States Prisoners of War Act of 2001, Senators Orrin Hatch and Dianne Feinstein introduced the POW Assistance Act of 2001 that would require a federal court to apply to a POW lawsuit the applicable statute of limitations of the State in which the action was brought (S. 1272). And Senators Jeff Bingaman (D-NM) and Hatch introduced a bill authorizing U.S. payments of $20,000 to any veteran or civilian internee (or their surviving spouses) who was captured and held as a prisoner of war by Japan and required to perform slave labor (S. 1302). The bill follows the examples of other former Allied nations such as Canada, Great Britain, Australia, and New Zealand, which have decided in recent years to compensate their veterans who were POWs under the Japanese military.

U.S. Media Coverage of the POW Lawsuits

The U.S. media have taken a keen interest in the POW lawsuits against Japanese companies from the very beginning. When Dr. Lester Tenney filed his case against Mitsui in the Superior Court of Los Angeles on August 12, 1999, it was front page news in the Los Angeles Times. Since then, there has been a steady stream of newspaper articles and TV programs on POWs who endured the "Bataan Death March," "Hell Ships," and inhumane treatment by Japanese companies during World War II, and on their legal fight against their former capturers. That they are also fighting against their own government, which has steadfastly sided with Japan, was also widely reported.

On June 17, 2001, the day before talks between Secretary of State Colin Powell and Japanese Minister of Foreign Affairs Makiko Tanaka, Parade Magazine, whose 37 million circulation makes it the largest publication in the U.S., ran an article in which former POWs recalled the constant abuse they received as slave laborers and painful memories such as having an injured leg amputated without anesthesia. The introduction of the Rohrabacher/Honda bill was also mentioned in the article. However, on that same day, Secretary of State Colin Powell appeared on a Fox TV news program. There was the following exchange between the interviewer, Tony Snow, and Secretary Powell:

Snow: Mrs. Tanaka comes out at a time when some members of Congress are advocating reparations for American POWs who were used as slave labor during World War II. Now, the State Department position is, in 1951 we agreed not to seek such reparations. But also buried in the same laws, language that indicates if other countries get a better deal, then we can revisit it. Well, at least 11 other countries are getting a better deal. Why should not American POWs be given the same sort of consideration that Holocaust victims are getting, in terms of reparations for World War II?

Powell: This is a terrible human tragedy. And it all happened when I was a young lad, but I remember vividly over those years and in the years since the horrible stories that came out of the Bataan death march. So this is a deep, personal tragedy for these veterans. But the facts are that the 1951 treaty did deal with these claims. And as a result, the United States-the State Department, on behalf of the United States, finds itself obliged to stay within the terms of the treaty. All the courts that have looked at this so far have upheld the correctness of that position. The specific issue about another clause that says, if anybody else gets a better deal, then it makes the clause that we're resting our case on not in effect any longer, that has not, obviously, been upheld by the courts over time. But it is certainly something I am going to look into again tomorrow.

On August 3, 2001, ABC's news program "Nightline" picked up the issue of the POW lawsuits. Its regular format is to invite representatives from both sides of an issue and let them express their views. But on this particular night, as they have ever since the lawsuits started, both the Japanese defendant companies and the Japanese government declined to appear on TV. So Congressman Cox sat in and spoke for them.

After the moderator mentioned that most of the POW lawsuits had been dismissed on the grounds that the Peace Treaty waived their claims, Mr. Edward Jackfert, one of the plaintiffs, appeared on camera and said, "We were sacrificed once in the Philippines. Why should we be sacrificed again?" At this point the moderator informed the audience that a bill supporting the POW lawsuits had been introduced in the House of Representatives. One of the co-sponsors of the bill, Congressman Honda, appeared on camera and said, "This bill is essentially a bill to allow our ex-POWs who were utilized as slave laborers during World War II by Japanese-owned corporations to have a day in court in this country."

Congressman Cox followed and argued, "Whether or not we should claw off the well-healed scars and reopen this at this time and in this way, in violation of the treaty and in violation of international law, it seems to me, is subject to very serious question. The cornerstone of that relationship which has stood the test of a half century is the 1951 peace treaty that would be abrogated by this legislation."

The moderator then said, "Last month Secretary of State Powell promised to look into the POWs' demands, but this week a senior State Department official told "Nightline" its legal position has not changed. The Japanese government refused to comment."

The program concluded with a comment by Professor John Dower, whose book on postwar Japan, Embracing Defeat, won the year 2000 Pulitzer Prize.

"Tokyo war crimes trials explicitly excluded any leaders of the Zaibatsu, or the big business concerns that we're talking about here. . . . We wanted Japan on our side because China was now seen as the enemy. And this meant not burdening Japan with reparations (any more than necessary), not burdening Japan with future claims. That's the treaty of 1951 that your program talks about. And it also meant the Americans set about whitewashing and sanitizing Japan's war responsibility and war crimes. The old companies, Mitsui, Mitsubishi, did get somewhat broken up during the occupation but had regrouped by the early 1950s. They did regroup in different forms, but they are still the same genealogies. And the question for them, really, today is will they take a kind of moral responsibility-rather than legal-to go back and look at these issues? I think they as well as the government would morally and politically be well advised to take such a position. But that is not their position, and it's not the U.S. government's position. I think that they-the POWs-have an absolutely legitimate moral claim. The legal question is something different. But morally they certainly have a claim."

As the 50th anniversary of the signing of the San Francisco Peace Treaty approached, more stories on the POW lawsuits and how the Peace Treaty was blocking their cases appeared in the media. The New York Times article of September 4 by Steven Clemons quoted the letters exchanged between Prime Minister Shigeru Yoshida and Minister of Foreign Affairs of the Netherlands, Dirk Stikker, just before the signing of the Peace Treaty. In his letter, Yoshida wrote, "the Government of Japan does not consider that the Government of the Netherlands by signing the Treaty has itself expropriated the private claims of its nationals so that, as a consequence thereof, after the Treaty comes into force these claims would be non-existent." A Japanese translation of the Clemons article appeared in the September 9 Asahi Shimbun.

Author Linda Goetz Holmes, whose book Unjust Enrichment chronicles the plight of Allied POWs forced into slave labor by Japanese companies, became a frequent guest on TV programs dealing with the issue. She has documented that the relief funds sent to Japan in 1944 by the British and U.S. governments to alleviate the condition of the Allied POWs were not used for that original purpose but were held by the Japanese government and later donated to the International Committee of the Red Cross. After the war this fund was used to compensate Allied POWs under Article 16 of the San Francisco Peace Treaty. Ms. Holmes writes, "The final irony is that Japan, with the consent of the Allies, was allowed to use relief money contributed by its wartime enemies, rather than funds from its own treasury, to settle some of its postwar claims" (Unjust Enrichment, Stackpole Books, 2001, p. 111). The United States declined to receive compensation from this fund. Ms. Holmes also unearthed a 1957 letter from the American Embassy in Tokyo to the State Department which stated that Japan's entering into a treaty with Sweden raised a question concerning the applicability of Article 26 of the Peace Treaty.

The Japanese Reaction

The official position of the Japanese government on lawsuits filed by former American POWs against Japanese companies has not changed since the Vice Minister of Foreign Affairs stated in January, 2000, that these lawsuits did not have a legal base because the San Francisco Peace Treaty waived the claims of both Americans and Japanese. Defendant companies have mostly kept their silence, letting their attorneys argue that the Peace Treaty solved the issue.

But quietly, the Japanese Foreign Ministry has been on the move. When the state of Rhode Island was considering a bill similar to the California law that made it possible for former POWs to file lawsuits against Japanese companies until 2010, the Consulate General of Japan in Boston sent a letter to the Chairman of Rhode Island's House Finance Committee. It read in part: "We are little bit concerned with the bill because it enables civil lawsuits against Japanese companies in the United States for compensation during World War II and they might be forced to withdraw from this country." A similar letter was sent to the state legislatures of Nebraska and West Virginia when these states tried to pass similar legislation. These states did not enact the laws.

The Japanese Embassy in Washington, DC , also sent an inquiry to the State Department after the Japanese Imperial Government Disclosure Act of 2000 (Pub. L. 106-567) was enacted in December, 2000. Under this law, all U.S. records on Japanese war crimes from 1931 to 1945 are to be declassified, as the Nazi War Crimes Records were under the Nazi War Crimes Disclosure Act of 1998 (Pub. L. 105-246). The Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group (IWG) in charge of the declassification sent out a search list to each government agency wherein they stated that "anything relating to American and Allied Prisoners of War should be considered relevant as most POWs suffered at the hands of their Japanese captors" ("Search Term List Regarding World War II Japanese War Crimes, War Criminals, Prosecution, and Looting," Interagency Working Group [IWG], December 5, 2000).

Soon after the enactment of this law, the Japanese Embassy sent a letter to the State Department, which had representatives in the IWG, asking whether Japanese embassy officials would be allowed to preview such records before they were opened to the public. While a State Department official confirmed that it was the position of the United States that neither the Japanese government nor the Japanese Embassy has any role in the U.S.'s implementation of a domestic law, my effort to obtain a copy of the Japanese embassy letter under the Freedom of Information Act has so far not been successful. Although the FOIA office of the State Department admits the existence of the letter, it has maintained for the past four months that my request is under review.

Japanese Activists Respond

When human rights lawyers, scholars, and activists in Japan heard about the wave of POW lawsuits being filed in the United States and especially when the German Slave Labor Foundation was established, they formed a study team to go to Germany and learn how the German government and companies had resolved this issue. After coming home, they proposed establishing a foundation similar to the German foundation. They called on the Japanese government first to issue a sincere apology to all victims of its wartime forced labor. Then they suggested establishing a foundation, to which both the Japanese government and companies would contribute.2 Such a foundation would require the enactment of new laws, but the Japanese government, although maintaining that the Peace Treaty and other bilateral agreements has solved the issue of compensation, has already stated that "a solution including enacting new laws would not violate the treaties or our Constitution."3

Today, Japanese activists, including human rights lawyers, are beginning to see some fruits from their many years of hard work. On November 29, 2000, a Japanese construction company, Kajima Corporation, settled a case in which it agreed to set up a foundation of $4.6 million to compensate the Chinese forced laborers it used during World War II and their descendants. On July 12, 2001, the Tokyo District Court ordered the Japanese government to pay a Chinese forced labor victim $160,000. It was the very first ruling of a Japanese court ordering the government to pay compensation for a victim of wartime forced labor.

Japanese activist groups also achieved a victory of sorts in the summer of 2001 when they prevented a controversial history text book written by a group of nationalist academics from being adopted by the nation's junior high schools. By relying on grass root organizations across the nation and utilizing Internet communications, they succeeded in convincing every one of 544 public school districts in Japan not to adopt the text book (Kyokasho Joho Shiryo Center, http://www.h2.dion.ne.jp/~kyokasho). Given the international outcry from China and South Korea, the inaction of the Japanese government, and the well-funded campaign by right-wing groups, the significance of the Japanese activist groups' success cannot be overstated.

These same groups are also lobbying Diet members to enact laws that would solve some of the issues that Japan is often criticized for avoiding. For example, a bill was introduced in the Lower House on November 20, 2000, by three opposition parties-the Democratic Party, the Communist Party, and the Social Democratic Party-that would require the Japanese government to declassify all the records from 1931 to 1945 relating to, among other things, "forced labor," "comfort women," and "biological and chemical weapons." On March 21, 2001, the same three parties introduced a bill seeking government compensation for "comfort women" in the House of Councilors (Upper House). Both bills were expected to be reintroduced in the extraordinary session that started in late September, 2001.

Settlement: Is It Not in Everyone's Best Interest?

For the governments of Japan and the United States the passage of an amendment in the U.S. Senate supporting POW lawsuits, only two days after Foreign Minister Makiko Tanaka and Secretary of State Colin Powell reaffirmed that the Peace Treaty had settled the issue, must be a sobering reminder of how little their position was supported by the U.S. Congress. If the amendment is kept in the spending bill, President Bush will face a very difficult situation. Vetoing it may have serious consequences for the 2002 elections because most veterans' organizations support the POW lawsuits. Supporting veterans' organizations include the American Legion, the American Defenders of Bataan and Corregidor, the American Ex-Prisoners of War Organization, the Center for Internee Rights, the Disabled American Veterans, the Jewish War Veterans of the United States of America, and the Veterans of Foreign Wars. The Japanese government may have to prepare itself for the eventuality that the U.S. government can no longer continue to side with Japan.

For defendant Japanese companies the situation is also becoming increasingly similar to that faced by Swiss banks and German companies at the height of the Nazi slave-labor litigation. On September 5, 2001, a human rights group in San Francisco ran a full-page ad in the West Coast edition of the New York Times demanding that Japan issue an apology and pay compensation to all victims, including American former POWs, of its aggressive war. It called on readers to notify the leading Japanese corporations in the U.S. that "they can expect to bear the brunt of concerted publicity and boycotts if the Japanese government continues to placate a minority that denies the past, betrays the Japanese majority hungry for genuine closure, and stonewalls the international community for redress." American Jewish human rights organizations ran similar ads during their campaign against Swiss banks and German companies.

Many in Japan, including Foreign Ministry officials, argue that their case is different from the German one because of the Peace Treaty. But back in September, 1999, two federal courts in New Jersey ruled in favor of a German company because the peace treaty between Germany and the Allied Powers barred the claims of a slave laborer. Nonetheless, Germany and its industry recognized their moral responsibility and continued to negotiate until the fund was established. David Harris, Executive Director of the American Jewish Committee said, when I asked his views on the German and Japanese cases, "Those nations who hide behind the legal technicality will ultimately find that the wall comes tumbling down. We saw that in several cases in Europe. And when it does it ends up being a salutary process" (Ronza, May 2000).

On the other hand, the consequences of not settling may include many more expensive legal battles, dragging on for years, possible economic boycotts of Japanese products in the U.S., and perpetuating an image of Japan not facing its past that would hinder its ability to play a leadership role in the international community. Some of the mainstream media in Japan are beginning to recognize this. The Asahi Shimbun, one of the most respected daily newspapers in Japan, recently proposed that "once the truth about forced labor has been determined, Japan should work toward new legislation and the establishment of funds that specify corporate responsibility. Debate to advance public awareness over personal claims also is encouraged" (Asahi Shimbun Asia Network Proposals, June 22, 2001. English translation can be found at http://www.asahi.com/english/asianet/hatsu/eng_hatsu010707d.html).

However, since the terrorist bombing of September 11, the U.S. administration seems more determined than ever to fight Congress and the POWs on the issue of reparations. On September 25, 2001, the Washington Post prominently featured a letter on its editorial page signed by three former ambassadors to Japan, Walter F. Mondale, Thomas S. Foley, and Michael Armacost. Appropriately titled "Pacific Deal," the former ambassadors argue against the POW bills and amendments pending in Congress because they "would undermine our relations with Japan, a key ally. It would have serious, and negative, effects on our national security. . . . Why would Congress consider passing a law that could abrogate a treaty [the San Francisco Peace Treaty] so fundamental to our security at a time the president and his administration are trying so hard to forge a coalition to combat terrorism?"

On October 6, 2001, the Washington Post published a rejoinder by Senators Tom Harkin (D-IA) and Bob Smith (R-NH) and Representatives Mike Honda (D-CA) and Dans Rohrabacher (R-CA). In it they point out that "The American POWs are not suing Japan; they are suing private Japanese companies" and that "Japanese American relations would be best served by Japan's immediate and forthright recognition of its wartime past and an apology and compensation by the Japanese companies to these heroic veterans for their labor and suffering." Evidently, professional courtesy prevented them from questioning the propriety of Thomas Foley's identifying himself only as a former ambassador to Japan when he is, today, also a paid adviser to Mitsubishi on the POW suits.

Foreign Minister Tanaka's apology to former POWs offered during the Peace Treaty anniversary ceremony was a first step in the right direction toward resolving the issue without endless litigation. The U.S. government could also play a facilitating role, as it did in the German and Swiss litigation. Congressman Rohrabacher said when I interviewed him, "We should close the book. We are in a whole new era. Let's make sure that the last of the irritants between our countries from World War II are gone."

On December 7, 2001, the 60th anniversary of the Pearl Harbor attack, a TV documentary "Hell in the Pacific" will be shown in the U.S., in which the horrific treatment of Allied POWs will be prominently featured. More historical records will be opened and more people will learn about their story. Today, about 5,500 former POWs who were forced to work for Japanese companies are said to be alive but their numbers are dwindling. As the dignitaries who gathered in San Francisco for the 50th anniversary of the signing of the Peace Treaty entered the War Memorial Opera House, hundreds of demonstrators shouted from across the street, "We want justice! We want justice!" Will that message reach those who are in a position to resolve this issue?

KINUE TOKUDOME has an M.A. in International Relations from the University of Chicago. She has written extensively on the subject of justice for victims of Japanese war crimes in journals such as Ushio, Ronza, Gaiko Forum, and the Asahi Shimbun. During the year 2000 she held an Abe Fellowship for research on reparations for war crimes at the Institute of Social Science, University of Tokyo.

NOTES

1. The plaintiffs' lawyers quoted from Tetsuo Ito, "Japan's Settlement of the Post-World War II Reparations and Claims," Japanese Annual of International Law, No. 37 (1994), pp. 38-71, to argue that the Japanese government itself supported this view. Ito served as Director of the Legal Affairs Division, Treaty Bureau, of the Foreign Ministry of Japan.

2. Toshiaki Onodera, "Subete no senso higaisha ni shazai to hosho o," Nihon Kogyo no Senso Hanzai (War Crimes of Japanese Companies) (Tokyo: Soshisha, 2000), pp. 232-37.

3. Confirmed by Chief Cabinet Secretary Hiromu Nonaka, Shugiin Kessan-iinkai Kaigiroku, September 8, 1999.


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