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A letter to the Supreme Court of Japan from Canada ALPHA

 
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發表發表於: 三月 星期四 01, 2007 8:28 am    文章主題: A letter to the Supreme Court of Japan from Canada ALPHA 引言回覆

February 27, 2007

Hon. Ryoji Nakagawa, Presiding Judge
The Second Petty Bench
Supreme Court of Japan
4-2,Hayabusa-cho,Chiyoda
Tokyo, Japan

Dear Honorable Judge Ryoji Nakagawa,

Re: Your January 15,2007 decision to hold a special hearing regarding Chinese war victims’ right to claim against Nishimatsu Construction Co., Ltd.

As a Canadian human rights organization committed to supporting justice for victims of the Japanese government’s wartime measures during the Asia Pacific War, we are writing to raise our concern regarding the appropriate body to hear this case as well as the specific legal arguments related to the individual’s right to claim damages for war crimes.

For the past several years, we have been closely following the court cases of victims of atrocities committed by the Japanese imperial forces, including Chinese war victims seeking justice and compensation from the Japanese government and Japanese companies.

We were pleased that in the case of Chinese forced labour victims seeking compensation from Nishimatsu Construction Co., Ltd., the Hiroshima High Court upheld the basic legal principle of fairness and justice and ruled in favour of the war victims on July 9, 2004. Moreover, in the verdicts of this case handed down by both the district court and high court acknowledged the facts related to the atrocities based on evidence submitted by the Chinese plaintiffs.

To our disappointment, Nishimatsu Construction Co., Ltd then appealed to the Supreme Court of Japan. In response, your Petty Bench informed the appellants on January 15, 2007 that other than the issue of Chinese individual victims’ right to claim against Japan for compensation, no other appeal grounds would be considered. The special hearing debating this issue is set for March 16, 2007 at the Petty Bench. Is this the appropriate lieu? Would it not be more appropriate for such a debate to take place at the Grand Bench of the Supreme Court of Japan since this matter involves interpretation of international treaties, has the potential to provoke a diplomatic crisis between Japan and China and jeopardize the opportunity of building genuine trust and reconciliation between people of the two nations?

In any event, we would like to bring your attention to the fact that the Chinese victims’ right to claim for compensation has never been abandoned by any treaties between China and Japan. We urge the Supreme Court to consider the following in the special hearing:

1. China was not a signatory of the San Francisco Peace Treaty (1951) and was not even invited to join the negotiation of the Treaty. Thus, the Treaty has no binding effect on China. In any case, the San Francisco Peace Treaty does not waive the victims’ individual right to claim for compensation. During the treaty discussions themselves and in both the lawsuits of Japanese detained in Siberia and that of atomic bomb victims, the Japanese government has consistently expressed the view that what was abandoned in the San Francisco Peace Treaty was not the individual’s right to claim, but only the right to claim by the government on behalf of the individual from another nation (the right of diplomatic protection). But in similar lawsuits with Chinese as the plaintiffs, the Japanese government offered a totally different interpretation. In adopting such a double standard the Japanese government has effectively forfeited any credibility on this issue.

2. The Sino-Japanese Peace Treaty (1952) cannot be used as an excuse for the abandonment of the Chinese victims’ right to claim. The Sino-Japanese Peace Treaty was void after the signing of the Joint Communique of the Government of Japan and the Government of the People’s Republic of China in 1972. Even at the time when the Treaty was signed it was of limited application. As defined in an official exchange document attached to the Treaty, the Sino-Japanese Peace Treaty could only apply to territory actually controlled by Republic of China then and in the future. Therefore the Sino-Japanese Peace Treaty has established itself as not applicable to the People’s Republic of China.

3. It is public knowledge that claimants arising from wars include states, groups and individuals. This is due to the characteristics of damages. Individual or group property cannot be substituted with state property. By the same token, an individual’s right cannot be unconditionally taken over by the state. Any abandonment of the right should be openly and explicitly expressed. In the Joint Communique the Chinese government did not declare that it abandoned the right to claim of Chinese citizens on their behalf. It was based on this understanding that the first and second instance rulings by District Courts or High Courts in Tokyo, Fukuoka, Niigata, Hiroshima etc. did not support the Japanese government’s position of “the abandonment of the Chinese victims’ right to claim”. The only exception was the ruling of the Tokyo High Court on March 18, 2005, which supported for the first time the Japanese government’s position of “abandonment of Chinese victims’ right to claim” in the “comfort women” cases. This verdict by the Tokyo High Court violated legal precedent and was a provocative aberration.

4. The Joint Communique did not give up the Chinese nationals’ individual rights to claim for seeking compensation from Japan. What does exist is the speech by the Chinese Foreign Minister Qian Qichen in 1995, which clearly stated, “The Joint Communique abandoned the right to claim of the state, but the right to claim of the individuals has not been abandoned.”

Offering victims humanitarian consolation is an act of respect for basic human rights. Those who inflicted suffering and pain in violation of the rules of war should be held accountable for both their criminal responsibilities and civil liabilities. Only in this way can there be a deterrent effect on who seek to use military force to gain global hegemony. Hence the efforts of war victims seeking compensation from Japan are equivalent acts of defending world peace. It is only when the Japanese state is able to deal with Chinese war victims’ compensation demands on the basis of fairness and justice can there be meaningful restoration and development of trust and constructive relationship between the Chinese and Japanese peoples for many generations to come.

We expect the Supreme Court of Japan to uphold the basic legal principle of fairness and justice and grant the long-overdue redress to the victims by rejecting Nishimatsu Construction’s appeal on the ground of the so-called “abandonment of the Chinese victims’ right to claim”.

Any court decision discriminating against these Chinese plaintiffs’ right to claim would be utterly unacceptable and tarnish the integrity of the Supreme Court of Japan in the eyes of the international community.

I sincerely hope that the impartiality of your Court can withstand the political pressure of the Japanese government and corporations and will render a just verdict, as is the case with your counterparts in other developed states.

Respectfully submitted,

SIGNED

Thekla LIT
Co-chair of Canada ALPHA

c.c. 1. Support Group for Chinese Plaintiffs against Nishimatsu Construction
2. Ministry of Foreign Affairs of the People’s Republic of China
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