[LEGAL OPINION ON COMFORT WOMEN - PART II]
VICTIMS OF JUGUN IANFU SCHEME HAVE A RIGHT TO COMPENSATION
31. The Hague Convention of 1907 provides that a party which violates its provisions must pay compensation and that each party is liable for all acts committed by persons forming part of its armed forces. (The Hague Convention art. III). Thus, if acts committed by the Japanese government against Plaintiffs in this case violated provisions of the Hague Convention, then Japan is liable for compensation for these acts. As Plaintiffs are the victims of the acts, it is Plaintiffs who are entitled to compensation.
32. The Hague Convention condemns the acts committed against the plaintiffs in this case in two ways. First, it prohibits attacks on "family honour and rights, the lives of persons . . . as well a religious convictions and practices." (The Hague Regulations art. 46). As I set out in my article Compensation for Japan's World War II War-Rape Victims at the time of the drafting of the Hague Convention this phrase had come to mean prohibition against all acts effecting the dignity of women, including quite clearly rape, other forms of torture, murder and forced prostitution. (See Karen Parker & Jennifer Chew, op.cit. at 513-516). Second, the Hague Convention contains the Martens Clause:
Until a more complete code of laws of war has been issued . . . in cases not included in the Regulations ... the inhabitants and belligerents remain under the protection and the rule of the principles of the law of nations, as they result from usages established among civilized peoples, from the laws of humanity and from the dictates of the public conscience. (The Hague Convention, 8th preambular paragraph).
Customary international law both at the time of the treaty and at the time of World War II condemned as war crimes and crimes against humanity the acts at issue in this case. Because of the Martens Clause, these acts are also condemned by the Hague Convention, a treaty of Japan and fully in force throughout World War II. Accordingly, Japan has a duty under the hague Convention to pay compensation and Plaintiffs have a right under the Hague Convention to seek and receive compensation.
33. The Hague Convention contains no language limiting claims to a State. It is, however, patently clear that the intended beneficiaries of Article III are individuals whose rights under the Convention have been violated. This conforms with the then- accepted practice of individual claims procedures under customary international law to be discussed below. From a legal perspective, it makes no difference whether claimants such as Plaintiffs in this case seek compensation under the Hague Convention or under customary international law principles -- the State is still liable for compensation and tribunals adjudicating rights are competent to award compensation. As will also be seen below, most States have simply undertaken their obligations to compensate and established appropriate mechanisms to allow private claims rather than force victims to file action under customary law and/or the Hague Convention.
34. The clear right to compensation under the Hague Convention reflects the right to compensation as it had been long recognized long as either jus cogens or a fundamental principle of law. Fundamental principles of law are customary international law norms relating to the functioning of legal systems. Because these customary norms relating to the functioning of legal systems are considered mandatory or absolute, describing them as principles of law is the same as describing them as jus cogens. Whether described as jus cogens or a fundamental principle of law, the right to compensation as a principle of customary international law is binding on all states. As in all provisions of customary international law, all norms of jus cogens and all fundamental principles of law are equally binding on all types of legal systems, whether civil law, common law, socialist or any other.
35. Grotius lists the obligation to make restitution for wrongful acts fourth in his five basic elements of law. (Hugo Grotius, De Jure Belli Ac Pacis Libri Tres 12 (Francis Kelsey trans. 1949)(original published 1625)). Furukawa Terumi calls the fourth Grotius element "self-evident". (Furukawa Terumi, Punishment in A Normative Approach to War, Peace and Justice in Hugo Grotius 221, 240 (Onuma Yasuki, ed., 1993)). Terumi goes on to say that the Grotius elements are incorporated into all legal systems. (Id). I concur, and know of no legal system that does not incorporate these precepts. All legal systems recognize the two purposes of law: punishment/social control (penal law) and dispute resolution, including civil penalties and remedies (civil law).
36. In United States jurisprudence, Marbury v. Madison reflects the "fundamental principle of law" theory of compensation:
The very essence to civil liberty consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. [Blackstone] says, 'it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, or action at law, whenever that right is invaded.'" (Marbury v. Madison, 5 U.S. (Cranch) 137, 163 (1803))
37. The duty to compensation and the corresponding right of individual to seek and receive compensation are as essential to the concept of international law as to domestic law. (Note that the Grotius work cited above addresses international law). A German court stated it clearly, also reflecting the "fundamental principle of law" theory: "[redress] is indispensable to the existence of the law of nations as an international legal order and the observance of which is required by all members of the international community. German Federal Constitutional Court, Judgment of Apr. 7, 1965, BVerfGE.
38. Commentators are equally convincing. Addressing the issue of compensation in international law, Justice Guha Roy from India presents it this way: "[it is] a timeless axiom of justice without which social life is unthinkable, that a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed." (Guha Roy, Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law, 55 Am. J. Int'l L. 863 (1961)). Bin Cheng affirms the duty of redress is a fundamental principle of international law. (Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 169 (1953); Accord Theo Van Boven, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Preliminary Report, U.N. Doc. E/CN.4/Sub.2/1990/10 (1990): "There is no doubt that the obligation to provide for compensation as a means to repair a wrongful act or a wrongful situation is a well-established principle of international law.").
39. Commentators since at least the last century recognized the then-existing international law duty to compensate individuals for injuries from breaches of international law. For example, Woolsey wrote: "The right of redress exists in the case of individuals. . . . Redress consists of compensation for injury inflicted and for its consequences." (Theodore D. Woolsey, Introduction to the Study of International Law 17-18 (1892)). Woolsey also wrote about what he called the "duty of humanity": [c]ruelty may also reach beyond the sphere of humanity; it may violate rights, and justify self-protection and demand for redress. (Id. at 23).
40. The Permanent Court of International Justice, in its decision in the Chorzow Factory case, (Chorzow Factory (Indemnity), 1928 P.C.I.J. (ser. A) No. 17) clearly acknowledges the fundamental nature of the duty to compensate, calling it a part of "the general conception of law" and an "indispensable complement" to breaches of international norms. (Id. at 29).
41. For at least several centuries war-time violations have been viewed to impose a stronger duty to compensate for injuries than the duty imposed in peacetime. An early United States case, in which the Court analyzed existing customary international law, found that rights to compensation "are fully acquired by private persons during war, more especially if derived from the laws of war . . . [and] against the enemy, and in that case the individual might be entitled to compensation." (Ware v. Hylton, 3 U.S. (3 Dall.) 199, 279 (1796)). International claims tribunals established following wars prior to World War II had consistently provided individual compensation mechanisms. For example, the General Claims Commission between Mexico and the United States awarded compensation to the parents of a Mexican girl killed by United States soldiers. (Decision of the General Claims Commission, United States and Mexico, Garcia v. United States, (Docket No. 292, Dec. 3, 1926, reprinted in 21 Am. J. Int'l L. 581 (1927)). The Treaty of Peace with Germany (Treaty of Versailles) established mixed arbitration tribunals for private claims against Germany. (Treaty of Versailles, June 28, 1919, 1 Bevans 43)).
42. The international duty of states to compensate for injury to
persons or property of non-citizens was widely understood within
the legal community in the period between the two world wars.
There were even initiatives to codify the customary law of
compensation. Japanese scholars concurred with their peers
regarding a state's duty to compensate. (See, e.g.,
L'Association de Droit International du Japon, Draft Rules
Prepared by the Kokusaiho-Gakkwai, reprinted in 23 Am. J. Int'l
L. (Special No. 1929) which went as far as providing liability
for negligent as well as intentional acts). The Japanese draft
and others submitted for and incorporated in the Draft of the Law
of Responsibility for Damages Done in Their Territory to the
Persons or Property of Foreigners (known as the Harvard Draft)
clearly reflect the assumption that claimants would file legal
actions for damages in relevant domestic courts. (Harvard Draft,
23 Am. J. Int'l L. 131 (Special No. 1929).
43. Following World War II Germany entered into a number of
agreements with Israel, 11 European countries and a number of
private organizations representing victims to provide direct
compensation for Germany's World War II victims. Many of these
victims were war-rape victims, similar to Japan's war-rape
victims. For this reason, rape was such a prominent feature of
the Control Council Law. 10. I herein incorporate into this Opinion the section entitled "Germany's Postwar Reparation
Scheme" in my article Compensation for Japan's World War II
War-Rape Victims (Karen Parker & Jennifer Chew, op.cit. at 528-32). The German government has considered
compensation for its victims "an essential moral prerequisite for
Germany's readmission to the family of nations." (Benjamin
Ferencz, Compensating Victims of the Crimes of War, 12
Va. J. Int'l L. 343, 353 (1972)).
44. Also following World War II the international community set
up international, regional and internal legal regimes for human
rights in which the right to compensation and mechanisms are a
prominent feature. (See Karen Parker & Jennifer
Chew, op.cit. at 526-27). For example, the European
Court of Human Rights and the Inter-American Court of Human
Rights have ordered compensation to victims. See, e.g. Aloeboetoe
43. Following World War II Germany entered into a number of agreements with Israel, 11 European countries and a number of private organizations representing victims to provide direct compensation for Germany's World War II victims. Many of these victims were war-rape victims, similar to Japan's war-rape victims. For this reason, rape was such a prominent feature of the Control Council Law. 10. I herein incorporate into this Opinion the section entitled "Germany's Postwar Reparation Scheme" in my article Compensation for Japan's World War II War-Rape Victims (Karen Parker & Jennifer Chew, op.cit. at 528-32). The German government has considered compensation for its victims "an essential moral prerequisite for Germany's readmission to the family of nations." (Benjamin Ferencz, Compensating Victims of the Crimes of War, 12 Va. J. Int'l L. 343, 353 (1972)).
44. Also following World War II the international community set up international, regional and internal legal regimes for human rights in which the right to compensation and mechanisms are a prominent feature. (See Karen Parker & Jennifer Chew, op.cit. at 526-27). For example, the European Court of Human Rights and the Inter-American Court of Human Rights have ordered compensation to victims. See, e.g. Aloeboetoe v. Suriname, 1993 Inter-Am. Ct. H. R.. Belarus has instituted a plan for restitution and compensation for victims of repression in the 1920s - 1980s. See. U.N. Doc. E/CN.4/Sub.2/1995/17 at pp. 3-4. At present, almost all countries have internal mechnisms for providing compensation to victims of government abuse. Post-World War II conflicts have also seen claims processes established by belligerents to compensate persons because of war violations or injuries. For example, the United States established claims procedures following the military operations in Grenada and a similar process following military operations in Panama.
45. It is legally unthinkable that a person could be a victim of a war crime and not be allowed to exercise right to one of the most basic aspect of law -- the right to compensation
NON-EXISTENCE OF STATUTORY LIMITATIONS (TIME BARS)
46. Plaintiffs in this case have not received any compensation from the government of Japan for the war crimes and crimes against humanity committed against them by Japan. Victims of war crimes and crimes against humanity occurring in the course of World War II have a right to seek and receive compensation for their sufferings at any time in their lifetime. This is because of a general international law rule relating to war crimes and crimes against humanity which prohibits statutory limitations for legal actions. Though already a part of customary international law at the time of World War II, this rule is reflected in all relevant post-war treaties, including: the Convention on the Prevention and Punishment of the Crime of Genocide, Jan. 12, 1951, 78 U.N.T.S. 277; the Convention on the Non-Applicability of Statutory Limitation to War Crimes and Crimes Against Humanity, Nov. 11, 1970, 754 U.N.T.S. 73; The Geneva Conventions I - IV of 1949, 75 U.N.T.S. 31, 85, 135, and 267.
47. One of the reasons that international practice disfavors time-bars for war crimes and crimes against humanity is that necessary evidence may be withheld until long after the events. In this case, the Japanese government denied the events even though it knew that the denial was false. The government withheld necessary evidence making legal action impossible. Now that evidence has been discovered and the government of Japan can no longer deny the facts, Japan should not be allowed to escape the duty to compensate on the grounds that legal actions were not filed until now. In my view, such a situation would be repugnant to the principles at stake and would further compound the violations against these plaintiffs. If there is to be a time bar, it should only begin tolling when the withheld information came to light. As these actions have been filed within a very short time following the discovery of necessary documents and must be allowed to go forward.
48. Violators have the obligation to provide full compensation to victims. Accordingly, until plaintiffs in this case receive the compensation to which they are entitled, they are victims of an on-going violation by Japan of the failure to provide adequate redress.
POST-WAR HUMAN RIGHTS LAW APPLICABLE REGARDING PROCEDURES FOR SEEKING COMPENSATION
49. Plaintiffs in this case are entitled to all current international human rights law binding on Japan relating to procedures for seeking and receiving relief for violations. The Japanese judicial system is now bound to comply with all provisions of international human rights law relating to judicial function. One provision of the Universal Declaration of Human Rights is that "everyone has the right to an effective remedy by competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." (Universal Declaration of Human Rights, G.A. Res. 217(II)(1948)(Universal Declaration), acknowledged as binding customary law by Proclamation of Teheran, U.N. Doc. A/CONF.32/41 (1968) and by Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23). Article 7 of the Universal Declaration grants all persons equality before the law. Because of these binding post- War rules, plaintiffs in this case are entitled to seek compensation now in Japanese courts even if such a court may improperly deny claims under the Hague Convention.
50. Plaintiffs in this case have rights granted them by law and therefore have a right to an effective remedy by Japan of the violations of their rights. They are not nationals of Japan yet have the right to non-discrimination and equal protection in Japanese courts as they seek judicial enforcement of their right to compensation.
51. In sum, plaintiffs in this case have shown that the government of Japan committed war-crimes and crimes against humanity against them. These plaintiffs are entitled to compensation because the right to compensation is a customary international law right that has become a norm of jus cogens and is also one of the customary international law rights defined as a fundamental principle of law. They are also entitled to compensation because the Hague Convention mandates compensation for these crimes, and because contemporary international norms for judicial processes requires an effective remedy in competent tribunals for violations of these plaintiffs rights.
Karen Parker, J.D.