A
Brief Account of Chinese War Victims’ Lawsuits Seeking Compensation from the
Japanese Government and the Japanese Corporations Involved
Speech at Asia
Regional Conference at 2006 World Peace Forum
By Attorney Kang Jian
June 23, 2006
It is open knowledge that the war of invasion to China
launched by Japanese militarists brought atrocities to the Chinese people. From
1995, some of the Chinese war victims started to sue the
Japanese government and some Japanese corporations in Japanese courts, seeking
to bring the perpetrators to acknowledge the facts, to publicly apologize and
to provide compensation to victims through legal procedures.
I ) The war of Invasion and the atrocities brought
onto the Chinese people
On September 18, 1931, the Japanese militarists provoked war and the
invasion of China
began. In mid-August 1945, Japan surrendered,
ending the war after 15 years. According to experts, during this war of
invasion the Imperial Japanese Army
occupied 26 Chinese provinces, over 1,500 cities and counties. The Chinese
military and civilians suffered
casualties
of 30 million.
During the war, the Imperial Japanese Army completely ignored international
laws and committed atrocious crimes against Chinese civilians. They can be categorized into:
1. Slaughtering
and persecuting non-combatant persons;
2. Indiscriminate
bombing of cities and towns;
3. Forcing
Chinese civilians or prisoners-of-war into slave labor (sending them to slave
in the occupied territories of Manchuria, Mongolia, Southeast Asian countries
and Japan);
4. Forcing
Chinese women into Japanese military sexual slavery, i.e. forcing them to be
“comfort women”;
5. Using
Chinese as human subjects
for biological warfare experiments as well as making and using biological
warfare weapons;
6. Using
chemical weapons and abandoning large quantities of chemical shells and bombs
inside China.
II) Cases of lawsuits Seeking Compensation from Japan
In the early 1990s, compensation lawsuits
have been filed in different Japanese district courts by some Chinese victims
and families of deceased victims who suffered
severe physical, mental and property damages due to atrocious war crimes
committed by the Imperial Japanese Army.
These atrocities were committed against international laws. The Japanese government and some Japanese
corporations are named as the perpetrators legally liable. The total number of these suits
has reached 25 so far and can be grouped into several categories.
1.
Cases on Massacres
Since its invasion of China in 1931, the Imperial Japanese Army recklessly killed tens of
millions of common folks and committed many massacres. In September 1932, at a
village in Pingdingshan, Liaoning Province, the Japanese army opened machine gun fire on the
villagers and then poured gasoline and set the bodies on fire. Over 1000
civilians were killed just that incident alone. Three small children survived that
massacre. They were able to escape death because they were sheltered under
their parents’ bodies. These three survivors and the survivors of Nanjing
Massacre filed their suits at Tokyo District Court in August 1996 and August 1995
respectively, naming the Japanese government as the defendant. On September 22,
1999, judgment was made by the district court on the case of Nanjing Massacre.
The judgment vaguely stated part of the facts and then ruled against the
plaintiffs using the pretext of competency of individual as subject in law to sue the Japanese
government and that the statutory time limit had expired. In June
2002, the plaintiffs of Pingdingshan massacre also lost the case in the
district court. While the verdict
ascertained that the Imperial Japanese Army did commit the massacre, it was
ruled that the Japanese government did not have any responsibility because of
competence of individual as subject in the lawsuit and expiry of time limitation.
2.
Cases of Indiscriminate Bombing
From the time the Imperial Japanese Army invaded China, they bombed many
places in China, especially cities such as Shanghai, Nanjing, Guangzhou, Wuhan, Lanzhou, Changsha, Xian, Kunming, Chongqing, etc. The Japanese planes opened fire at crowds, dropped
incendiary bombs, or carried out indiscriminate bombings. Many innocent
civilians were killed by the Imperial Japanese Army and some cities were almost
reduced to rubbles. Take the bombing of Chongqing for
example. The Imperial Japanese Army bombed the city for three years. Some Japanese scholars researched on the
bombing of Chongqing and their data revealed that there were 218 bombing raids, 21,513
bombs were dropped, causing more than 35,000 casualties and 10,000
buildings ruined.
Indiscriminate bombing survivor Gao
Xiongfei sued against the Japanese government seeking compensation. The Tokyo
District Court ascertained the facts but ruled Gao lost the case under the
pretext of statutory time limit had expired and competency of individual as subject in law to sue the Japanese
government.
3.
Cases of Forced Labor
Ever since Japan invaded the three
northeastern provinces of China (Heilongjiang, Liaoning and Jilin provinces) in 1931, in order to speed up the plundering of
resources from China, it started the planned abduction of laborers from provinces south
of the Great Wall to these northeastern provinces to slave work in mines and
military constructions. Records show that millions of Chinese laborers slaved
in such projects alone.
As the war of invasion dragged on, the Japanese government
realized its severe shortage of labor in Japan. To solve this problem, it abducted over 40,000 people from China and shipped them
to Japan in batches to become slave labors. These laborers were assigned to 35
Japanese corporations in 135 work sites. These Chinese laborers were treated
with inhuman cruelty in severe working conditions. The Japanese corporations
assigned numbers to the laborers, or called them by “slaves from a conquered
country” or “coolie,” never by their Chinese names.
The Chinese forced laborers worked everyday for at least
10-12 hours continuously, the longest being 18 hours. They did not have
holidays or days off and had no medical care. About 7000 Chinese laborers died in Japan due to maltreatment within two years. In my research, every forced
labor survivor talked about the unbearable starvation. The laborers
performed heavy physical work but ate only moldy food mixed with bran and grits
plus a few pieces of preserved vegetables. They were so hungry that when they
passed garbage dumpsters on their way to and from work, they would pick up
trashes discarded by the Japanese such as orange
peels, rotten vegetable leaves, or plucked weeds from the roadside to eat. Some
ate the fish guts discarded by Japanese people and undigested corns found in cow dung. If
they were caught doing this by the Japanese supervisors, they
would receive severe beatings. They had no warm clothes for winter. The laborers
used brown paper or the blanket they slept in to cover themselves and tied
straw around their feet as shoes. Many suffered frostbites.
Even for those who survived, they suffer from many illnesses and diseases for the rest of their lives.
The Japanese government and the corporations involved had amassed
enormous riches from the Chinese forced laborers whose wages have yet to be
paid. Over the years more than two hundred Chinese forced labor survivors have filed
lawsuits at several district courts in Japan.
4.
Cases of “Comfort Women”
The Japanese government and military established the evil
system of “comfort women” in order to boost the fighting morale of Imperial
Japanese Army and to sustain its war of invasion in China. By analyzing the setting up criteria of “comfort stations” and
the wide geographical distribution of Japanese occupied territories, scholars
concluded that the Japanese government had forced hundreds of thousands of
women to be “comfort women”. I conducted an investigation with over twenty survivors of sexual
violence, i.e. the former “comfort women,” and found that all were kept in
“comfort stations” controlled by the Imperial Japanese Army. The Japanese soldiers violently assaulted
the victims sexually and incessantly.
According to survivors, their suffering in the “comfort stations” was excruciating and some victims
became insane right on the spot. The “comfort women” who survived the ordeal
all had wounds and disabilities. Some lost the ability to bear children.
Among the four Chinese “comfort women” cases accepted by
Tokyo District Court (not including the suits filed by
victims from Taiwan), three cases have reached the Supreme Court of Japan and
one of which had the final verdict in December 2005. All existing verdicts acknowledged
the fact of organized sexual violence against Chinese women by the Imperial
Japanese Army but they all exempted the Japanese government from bearing any
responsibilities using excuses such as statutory time limit had expired.
5.
Cases of Abandoned Chemical Weapons and Biological Warfare
During its invasion of China, the Imperial Japanese Army had been secretly researching and making
chemical and BW weapons for a long period of time. They used the chemical and
germ weapons long banned internationally in China. After they lost the war, they deliberately abandoned these
forbidden chemical weapons in China. As a result, though the war had ended for years, Chinese people continues to
suffer injuries from the chemical weapons abandoned by the Imperial Japanese
Army. For example, chemical bombs retrieved during the dredging project of Songhua River claimed
lives and caused injuries. A bomb
buried under a construction site in Heilongjiang Province exploded and claimed more lives and caused more injuries. Two
groups of victims of chemical weapons had filed lawsuits in the Tokyo
District Court and both had received verdict from the court. Facts of similar
nature rendered plaintiffs of one case the winner and the other the loser. The reason for losing the case was again
excuses of competency of individual as subject to sue the Japanese
government and that statutory time limit had expired.
Using germs to kill Chinese soldiers and civilians was one
of the war crimes committed by the Japanese military. Unit 731 and several
other units were established by the Imperial Japanese Army for the purpose of
carrying out biological warfare. They used Chinese as test subjects for biological
warfare experiments and then used the results of the human
experiments to make BW weapons to kill more Chinese soldiers and civilians. For
example, the Imperial Japanese Army conducted biological warfare in Quzhou and
Ningbo of Zhejiang Province in 1940; in Changde of Hunan Province in 1941. In
Yiwu and Chongshan of Zhejiang Province, germs were planted and spread by the
Imperial Japanese Army to induce outbreaks of epidemic diseases. Some of the survivors and
families of deceased victims have filed a lawsuit at Tokyo
District Court and the Japanese judges rejected the claims with similar excuses
of statutory time limitations, etc. Now the case is in the Supreme Court of
Japan.
III) Attitude of the Japanese Government toward War
responsibilities
(1)
Burning
and hiding evidences
a) In
August 1945, the Japanese emperor announced Japan’s surrender
and the war was over. However, before this took place, the Japanese government
already realized that things were not going the direction they expected and
started to destroy documents in China, kill the abducted Chinese laborers
working on military constructions,
and those POWs and civilians who were used as testing subjects
for the biological warfare experiments.
b) To
use the Chinese forced laborers as an example. Not long after Japan lost
the war, the International Military Tribunal of the Far
East was established. The Japanese government,
through its Ministry of Foreign Affairs, organized a special taskforce to
produce a report that glossed over the abuses of Chinese forced laborers, in
case the Chinese government might conduct investigations on the illegal acts of
abducting Chinese to be slave laborers in Japan.
Later, out of consideration for political interests of the U.S., the
International Military Tribunal for the Fast East just rushed through the
trials and did not systematically go after the war responsibilities of the
Japanese government toward the Chinese forced laborers. Immediately afterwards,
the Japanese government ordered the destruction of this manufactured report.
But one of the copies, though incomplete, of the report was sneaked out to
Tokyo Overseas Chinese Federation by some conscientious Japanese. This document
played an important role in our seeking accountability of the Japanese
government and the Japanese corporations involved.
(2)
Openly
lying and fabricating information
- The
Chinese peasant Liu Lianren was forcibly brought to Japan
in 1944 by the Imperial Japanese Army to work in a Hokkaido
mine as a slave laborer. Unable to bear the harsh treatment by the
Japanese corporation, Liu ran away and hid in the deep mountains of Hokkaido,
living like a wild man in the wilderness for 13 years. It caused a
sensation in Japan
when he was found by accident in 1958. The Japanese government officials
knew well that Liu Lianren was a forced laborer abducted from China. Because the Japanese government firmly
believed that all documents of the forced laborers had been destroyed,
they wanted to treat Liu Lianren’s case as that of an illegal immigrant so
as to avoid responsibility. With the help of overseas Chinese in Hokkaido,
Liu Lianren’s identity was confirmed. The then Japanese Prime Minister.
Kishi Nobusuke
(Note: he was the wartime Minister of Industry and Commerce and was
directly involved in the decision to import Chinese forced laborers) said
at a parliamentary meeting that the government had no detailed information
of the period and had no way now to verify if he (Liu Lianren) was abducted
to Japan or if he had given his consent.
- While
the Japanese government was hiding information with regard to Chinese
forced laborers, it lied to conscientious Japanese people who inquired
about this issue,
claiming no data was available. In July 2003, under increasing pressure,
the Japanese Ministry of Foreign Affairs was forced to disclose some of
the information. But by then the war had been over for 58 years. The
explanation offered by the Ministry of Foreign Affairs was that these
files were kept at the basement archive and were not found in time. What
pale words!
(3)
Finding
excuses and shedding responsibilities
In the lawsuits
brought against the Japanese government by the Chinese wartime victims, it
never faced squarely and responded to the facts submitted
by the plaintiffs. Instead the
Japanese government tried to avoid its responsibilities using excuses of statutory
time limit had expired or “state immunity.” I will discuss these issues in
the section “Attitude of the Japanese judges” and therefore will not elaborate
here.
IV) Attitude of Japanese Corporations toward their
illegal Acts and Responsibilities
The Japanese government launched the war under the banner of
“protecting Japan and
protecting Asia” and it mobilized all
Japanese nationals to join in the war efforts. As its battlefront expanded, the
shortage of domestic labor became more prominent. In order to sustain
the war of aggression, Japanese corporations as represented by Mitsubishi(三菱), Mitsui(三井)and Kajima(鹿岛) and business associations
representing corporations in coal, metal and construction industries proposed
to the Japanese government to import “Chinese laborers.” Joined by the Japanese
government and the military, these corporations and industries conducted a
field study together on the targeted regions and laborers of the program. In
November 1942, the Japanese cabinet passed the resolution to import “Chinese laborers.”
Existing documents and data reveal that from 1943 when
the organized abduction and transportation of the Chinese laborers to Japan
began, to 1945 when Japan was defeated, 40,000 Chinese were forcibly sent to Japan to work as slave laborers for 35 Japanese corporations in 135 working
sites. Today, 24 of the 35 corporations of that time are still operating.
Except for Mitsui
Ship Building Co(三井造船公司), all 23 corporations have
been sued in
court.
Mitsui,
Mitsubishi,
Kajima, Sumitomo(住友) and the rest of the 23 Japanese
corporations held basically similar attitudes during the court trials. That is,
at the initial stage, they all denied what happened by saying things such as
“not knowing” the abuse the plaintiffs suffered,
“this was something happened in the past, irrelevant to the present,” “the time
limits for filing claims have expired a long time ago and so there is no need
to investigate the facts,” etc., so that they would not have any
responsibility. When the plaintiffs produced enormous quantities of evidences
proving the cruel abusive treatment by the Japanese corporations during those
days and when these evidences were ascertained during trials at district courts,
the Japanese corporations changed their strategies. Again, they used lies and
other tactics such as
diverting the crisis onto the Japanese people to instigate Japanese nationalist
sentiment, in order to create
cover-ups for its illegal acts in history.
For example, some Japanese corporations mentioned in their written
statements submitted
to the court, “during wartime, Japanese nationals also lived a hard life
without enough to eat. It was good enough that the Chinese laborers could eat
three meals a day and getting 2500 kilocalorie.” The fact was that the Chinese laborers
ate moldy food mixed with bran and grits plus a few pieces of preserved
vegetables. But they had to perform hard labor for more than 10 hours every
day, the longest being 18 hours, and had no days off. Severe malnutrition caused varied degrees
of illnesses among slave laborers working in these 35 corporations. The most
commonly found were cases of night blindness or loss of eyesight. The situation
was grave at Nanao Ocean and
Land Shipping Corporation (七尾海陆运送公司). Of the 399 Chinese laborers 15
died in less than a year, 307 suffered from severe eye diseases, with 64 of them
having lost one or both eyesights and more than 70 suffered from night blindness. Even during wartime, it was uncommon for Japanese
nationals to suffer such serious diseases. Never were there any cases of Japanese nationals suffering from night blindness or loss
of eyesight caused by severe malnutrition.
Some
Japanese corporations declared in their written statements, “The Japanese were
performing similar kind of works in the coal mines, not very different from the
Chinese except that the Chinese had more confined work spaces plus dampness
that could make them more tired.” The fact was that the Japanese were supervisors in the coal pits. They
were not laboring at all, just keeping watch on the Chinese.
Mitsubishi
Corporation clearly stated in their written submissions
to Fukuoka District Court, “The court is not the place to determine whether it
was a war of invasion or not.”; “This case does not require a verification of
the facts because time limitation of the plaintiffs’ claim had already expired.”;
“It is a mistake to use today’s common sense to judge the past.” Mitsubishi
Corporation adopted one particular point of view, namely “The Tokyo Trial
(Note: International Military Tribunal for the Far
East) was an act of retribution to the loser by the
victor.” The final conclusion Mitsubishi
Corporation arrived at was that “Not understanding the nature of this case
would saddle Japanese nationals with a mistaken burden of the soul for hundred
years to come.”
The above are just some straight forward examples. These trickles of
facts allow people to see that the Japanese corporations involved have no
regrets at all for what they had done illegally in the past. On the contrary, they are even nostalgic
about those days.
V) Attitude of the Japanese judges toward facts
and responsibilities
The Chinese war victims filed 25 lawsuits in several
Japanese courts against the Japanese government and the Japanese corporations
involved. Fourteen of these suits were forced labor cases. From
1995 to March 2006, seven lawsuits received verdict
at district courts and 3 received verdict from higher court. Of
those district courts’ verdicts delivered before May 2001, none contained
ascertainment or mentioning of facts. The judges simply rejected the claims on
the basis of expiry of time limitations or “state immunity.” In verdicts
rendered after July 2001, whether the plaintiff won or lost, it was
acknowledged that the Japanese government and the corporations involved
committed illegal acts together and treated the Chinese laborers cruelly. Besides
acknowledging the facts of the forced labor cases, some of the presiding Japanese
judges also upheld the basic legal principle of fairness and justice and
rejected the defense of statutory time limitations put forward by the Japanese
government and corporations involved. But most of the Japanese judges still
lacked courage to face the grave unlawful acts against the Asian peoples
committed by the Japanese government and corporations. They dared not sentence
the Japanese government and corporations involved into taking responsibilities
as the perpetrators. They acknowledged the facts but then exempted the Japanese
government and corporations involved from the liabilities under the pretext of
statutory time limit had expired or “state immunity.”
1) On
Statutory Time Limitations
Legalists from around the world all know that the
establishment of time limitations is for the purpose of maintaining a
relatively stable legal order. It is also a restraint on negligence of rights
of action. But lawsuits seeking compensations for war crimes should be an exception.
This is because persons responsible for the war crimes are normally heads in a
government or the actual implementers of an order made by a government, and as an
individual sets out to right the wrongs committed by a government or a
perpetrator backed by a government, even after the war has ended, this
individual as the victim is bound to be restricted by various conditions, such as the
difficulties in obtaining evidences, the influences of international and
domestic environment, and the
individual’s economic conditions, etc. There exists an innate vulnerability on
the part of the victim demanding justice. Yet it’s individuals who suffered most
directly from wartime unlawful acts.
On July 13, 2001 and April 26, 2002, Tokyo District Court
and Fukuoka District Court ruled in favour and partial favour on the case of
Liu Lianren and the Mitsui Mine(三井矿山) Forced Labor case respectively. On March 26, 2003 and July
9, 2004, the Niigata District Court and Hiroshima High Court also ruled that
the plaintiffs of similar Chinese forced labor cases partially won in their
compensation lawsuits against the Japanese government, Rinko Corp in Niigata(新泻临港集团) and Nishimatsu Construction Co(西松建设). The judges who ruled in these four cases used the basic legal
principle of fairness and justice and negated the defense of expired limitation
period put up by the Japanese government and the corporations involved. These
judges believed that although the plaintiffs, after suffering from such atrocities,
were unable to exercise their rights within the time limit required by
law, it was against the concept of
legal fairness and justice to prevent them from exercising their right of
action on the basis of statutory time limitations. These 12 Japanese judges who
presided over the four cases embodied and actualized the concept of protecting
and respecting human rights. But most judges did not have the courage to hold the
Japanese government and corporations involved accountable and could only play a
legal game.
2) On
“State Immunity”
In dealing with lawsuits filed
by Asian victims including the Chinese, Japanese courts frequently used “state
immunity” to excuse the Japanese government from being held accountable for its
wartime crimes.
The so-called “state immunity” is a legal doctrine, which appeared
during the Meiji period (1867) based on the idea of supremacy
of the Japanese emperor. Even then it was controversial. The doctrine ruled
that when the State representing the will of the Japanese emperor caused damage
to its nationals while carrying out public duties, it would not compensate and
the State was immune. At that time, the doctrine only applied to Japanese
nationals subjected
to the rule of the Japanese emperor. The Chinese
nationals were certainly not under the rule of the Japanese emperor and the
Chinese government and people never invited the Japanese government to come to China to exercise their reign. The Japanese government then invaded China by military force and committed burning, plundering and killing of
Chinese people on Chinese territory. These were obviously illegal acts and did
not meet the basic condition for applying the doctrine of “state immunity.” The
Japanese judges’ use of this excuse to exempt the Japanese government from the
liability of wartime crimes inflicted on Chinese people is groundless.
The Japanese government also used “state immunity” as an excuse of
pleading exemption from liabilities in the case of “comfort women.” Most judges
supported
this defense of the Japanese government. Looking around the world, do we see
another country whose government can call, as the Japanese government has, the
organized raping of women from other countries “acts of carrying out state
business” and shamelessly repeat that raping women from other countries is a
state business that can be “exempted from liabilities”? As legalists, some Japanese judges
readily used this excuse to exempt the Japanese government. This act of
blaspheming the law and not feeling guilty has become the trump card for the
Japanese government and some Japanese judges in rebutting former Chinese “comfort women”. We should
all feel sorry for modern civilization.
VI) The Japanese government takes advantage of the
generosity of victimized countries to cover-up their atrocities committed
During WWII, Japan
carried out large scale military aggressions and economic plundering in many
Asian countries including China.
Although the war ended with Japan’s
defeat, the crimes committed by Japanese militarists have not been thoroughly
investigated or the liabilities sought, as they should. Consequently, many
Japanese politicians still house nostalgic feelings toward that period. For
example, many members of Japanese parliament have been collectively and
repeatedly paying homage at the Yasukuni
Shrine where convicted Class A Japanese war criminals are enshrined; the
Japanese Ministry of Education approved history textbooks that whitewashes
Japanese aggression and so deceive the youths of Japan; Japan has painted
itself as the victim while keeping silent about the atrocities it had committed
against peoples of other countries …. There is no doubt such unconscionable
acts of Japan that
completely ignore history are rubbing salt into wounds of the peoples of victimized
countries. Such acts deeply hurt the feelings of peoples in these countries. It
was in this context that demonstrations took place between spring and summer
of 2005 in some Chinese cities, voluntarily organized by the people of those
cities to protest against Japanese government’s distortion of history. Instead
of reflecting on their own wrongdoings, the Japanese government used Japanese
media and deliberately played up the so-called Chinese threat to Japan.
However, with calm analysis it is not difficult to see that what the Chinese
people protest against is the Japanese government’s unconscionable acts of
distorting history. The history that the Japanese government seeks to cover-up
and distort was the war that brought on atrocities to Asian peoples. Only when
we can remember deep in our hearts this evil war and draw lessons from it, will
we have long lasting peace. The intention to seek truth in history on the part
of the Chinese people is of goodwill and for peace. On the contrary, the
Japanese government has done all they can to cover-up history and to instigate ultra-nationalism
in Japan.
This is the real threat to Asia.
VII) CONCLUSION
Peace is the wish of the many and war is the hobby of the few. But this
wicked hobby of the few often brings to the mass major disasters. Today, as we
comment on the attitudes of the Japanese government and corporations involved
and the Japanese judges towards war responsibilities, it is our hope to use
civilized means to deliver the wishes of goodwilled people and encourage them
to acknowledge history, apologize sincerely to victims and offer compensation,
for the sake of long term peace and stability. But the reality shows
mercilessly that today’s government of Japan and the Japanese corporations as
represented by Mitsubishi,
Mitsui,
Kajima etc. who are liable for war responsibilities are not willing to face
history or to admit guilt of past aggression. They have painted themselves as
victims and consider the postwar trials as acts of retribution. We must keep a
clear view on this issue and
maintain necessary vigilance.