Law – Law of War – Compensation for the Prisoners of War (or Surrendered
Enemy Personnel) Detained in the USSR after World War 11 – Applicability of
Articles 66 and 68 of the Third Geneva Convention of 1949 – Establishment of
“the Rule of Compensation by States on which Prisoners of War Depend” as
International Customary Law (Denied)
Tokyo District Court, judgment, 1989, Case No. wa-4024, wa-8983 (1981), wa-731
(1982), wa-12166 (1985), Hanrei Taimuzu (The Law Times Report) No. 703, 63.
X1, X2, X3 et al. v. The State of Japan
World War II terminated with the acceptance by Japan of the
Proclamation of Three Powers at Potsdam on August 15, 1945 and the
subsequent signing to the Instrument of Surrender on September 2.
Shortly before, that is, on August 8, the Soviet Union unilaterally
denounced its Treaty of Neutrality with Japan, which had still been in
force at the moment, and declared war against Japan. This was in
accordance with a secret agreement made with the Western Allies at the
Yalta Conference in February 1945. The Soviets attacked and occupied in
rapid order Manchuria, Kwantong province, the northern part of Korea,
South Sakhalin and the Kuriles and other islands. With the acceptance of
the Proclamation of Three Powers at Potsdam, the Government of Japan
ordered its armed forces to suspend all military operations on 16 August,
and also ordered demobilization on August 19. Accordingly, the Japanese
armies were disarmed by the USSR armies in each of the areas the
Soviets had brought under their occupation. The disarmed Japanese
officers and soldiers were detained as Prisoners of War (hereinafter
abbreviated as POWs) and dispersed in 2,000 camps located within the
territory of the USSR, as in Siberia, Central Asia and the Far North,
where they were put to forced labor. While almost all the Japanese POWs
detained in the territories occupied by the other allies were repatriated by
the end of 1946, detention by the USSR continued until at least as late as
1958, when the repatriation was almost completed. The detained Japanese
were organized into working groups of about 1,000 each and forced to
labor, mostly outdoors, in such projects as deforestation and hauling of
the logs, construction of railways, dams, power stations and canals,
dockside cargo handling, farm work, etc.
The working time was set at eight hours a day, not including the time
to and from the work place. Besides, when the work done did not fulfill
the norm fixed for it, the working time was extended and such
punishment as reduction of food rations was imposed. The standard food
rations were 300 or 350 grams of black bread and a cup of soup with
cereal per person a day. This was small enough, but in actuality the
supply was seldom that much. The POWs were so severely starved that
they ate whatever they could find, as frogs, snakes, tadpoles, leaf-buds
and bark. From the beginning especially, the food shortage was extreme
and this lasted until some time around summer in 1946. In that period a
number of POWs died of malnutrition.
In Siberia, where winter temperatures of 40 or 50 degrees below zero
centigrade are not unusual, the POWs were forced to labor outdoors until
the temperature dropped below those extremes. Many were killed or
injured by accidents at work because of malnutrition. Other factors
contributing to illnesses and death were the severe cold and lack of rest,
not to mention an spread of infectious diseases. The death toll during
detention is estimated at over 60,000 among the total of 700,000 POWs in
Siberia. Even among those who were fortunate enough to be repatriated
alive, many suffered mental and physical injury, and others were victims
of secondary effects appearing after their repatriation.
The facts mentioned above are established in the present case by the
Court as facts well known to the public. In this case the plaintiffs, former
POWs detained in Siberia, claimed against the State of Japan for
settlement of the credit balances as well as for compensation for damages
suffered during their detention in the USSR.
Since all the plaintiffs (except three, X1, X2 and X3, whose
repatriation was delayed due to special circumstances of their own) were
repatriated before the conclusion of the Geneva Convention in 1949, the
issue was raised in the pleadings whether the “Rule of compensations by
a State on which POWs depend,” provided for in the Convention, had
already been established as international customary law sometime before
its conclusion. After examining measures for compensation taken by
several States for former POWs of their own nationality, the Court
confirmed that among the belligerents in World War II, the United States,
France, Canada, West Germany, and Austria had legislated domestic laws
to provide for various kinds of such compensation. The fact was also
affirmed that after the war, under the direction of the Supreme
Commander for the Allied Powers, the Government of Japan, making
special budgetary arrangements, also made payment for the credit balance
of working pay on a receipt of cash issued by the detaining States for
former POWs of Japanese nationality detained in Australia, New Zealand,
Southeast Asia and the United States.
Held: “All claims shall be dismissed upon grounds stated below. The plaintiffs
shall bear the costs of litigation.”
Upon grounds stated below;
I.-III.
[omitted]
“Claims based upon Article 66 and Article 68 of the Third Geneva Convention
of 1949
The plaintiffs. . . . contended that Articles 66 and 68 of the Third Geneva
Convention of 1949 (hereinafter abbreviated as the 1949 Convention) have entitled
them to claim against the defendant for compensation in respect to the payment of
the credit balance accounting for forced labor, injuries and other losses arising out of
labor accidents as well as those of personal effects, monies and valuables impounded
by the detaining State that were not restored to them at the time of repatriation,
and/or compensation in respect to losses and damages for which the detaining State
or its servants are liable. This Court shall, therefore, first of all, examine the
applicability of Articles 66 and 68 of the 1949 Convention to the plaintiffs.”
1. “The Geneva Convention of 1929 and the 1949 Convention”
“The Geneva Convention of 1929 (hereinafter the ‘1929 Convention’) was the
only treaty rule at the time of World War II relative to the treatment of prisoners
captured during land warfare. It was ratified by 52 States. The USSR neither attended
the diplomatic conference of 1929 which adopted the Convention, nor ratified the
Convention. Japan did not ratify it either, but expressed, in January 1942, in response
to inquiries from the governments of the U.S. and the U.K., that Japan should apply
the provisions of the 1929 Convention mutatis mutandis to the POWs under its
jurisdiction. The Convention was applied in a number of States during and after
World War II.”
“At the diplomatic conference convened by Switzerland and held in Geneva from
21 April to 12 August 1949, four conventions were adopted and 17 States signed
them on 12 August 1949. Japan notified its accession to them on 21 April 1953, and
the accession came into effect on 21 October that year. On the same day, they were
promulgated and incorporated into Japanese domestic law as Treaty No. 25 of that
year. The USSR also acceded to the four Conventions on 10 November 1954. It is
the Third Convention of 1949, relative to the treatment of POWs, on which the
plaintiffs based their claims.”
IV.
2.
[omitted]
3. “Applicability of Articles 66 and 68 of the 1949 Convention to the Japanese
POWs Detained in the USSR.”
(1) “Article 2 of the 1949 Convention provides that:
‘[I]n addition to the provision which shall be implemented in peace time, the
present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more High Contracting
Parties, even if the state of war is not recognized by one of them.
[T]he Convention shall also apply to all cases of partial or total occupation of
the territory of the High Contracting Party, even if the said occupation meets
with no armed resistance.
[A]lthough one of the Powers in conflict may not be a party to the present
Convention, the Powers who are parties thereto shall remain bound by it in
their mutual relations.
[T]hey shall furthermore be bound by the Convention in relation to the said
Power, if the latter accepts and applies the provisions thereof.’
As mentioned above, Japan and the USSR acceded to the 1949 Convention. From
this it is clear that the Convention is applicable to declared wars or other armed
conflicts between both States in accordance with Articles 2, 139, and 140 of the 1949
Convention. “
“However, a problem remains as to whether the provisions of Articles 66 and 68
of the Convention are applicable to the plaintiffs (other than X1, X2 and X3) who
had lost their status as POWs due to repatriation before 10 November 1954, when the
USSR acceded to the Convention, thereby making those treaty provisions applicable
as between Japan and the USSR.”
(2) “As Article 28 of the Geneva Convention on the Law of the Treaties states,
treaty provisions are generally not retroactive unless a different intention is clear
from the text of the treaty or is otherwise recognized.
Article 14 of the 1949 Convention provides that:
‘[T]he situation provided for in Articles 2 and 3 shall give immediate effect
to ratifications deposited and accessions notified by the Patties to conflict
before or after the beginning of hostilities or occupation. . . .
With regard to those articles referred to in this Article, Article 2 provides as quoted
above, and Article 3 provides that the parties to a conflict must apply certain
provisions to armed conflicts occurring in the territory of one of the contracting
parties, even if they are not of an international character. Thus, although Article 141
clearly provides that the Convention is applicable to the wars or armed conflicts
which occur after as well as before the parties to the conflict ratify or accede to the
Convention, it is not interpreted as applying to cases where ratification or accession
is done after the repatriation of the POWs is completed, and the Convention does not
include any provision to allow retroactive application in such a sense. Accordingly,
for the 1949 Convention to apply retroactively to the detention of the Japanese
POWs in the USSR, it must be otherwise established that the Convention was
intended to apply retroactively to the consequences of World War II as a whole.”
(3) “The plaintiffs argued that the legislative history of the Convention had shown
the clear intention of its originators to apply it to the consequences resulting from
World War II.”
“Certainly, the 1949 Convention, especially Articles 66 and 68 on which the
plaintiffs based their claim, might have intended to revise the provisions of Article
24, paragraph 2 (requiring that the Detaining Powers pay the credit balances to the
POWs at the end of their captivity) and Article 27, paragraph 4 (requiring that the
Detaining States admit to those POWs who had incurred injuries from accidents at
work during their captivity, the benefits of the provisions applicable to workmen of
the same category under its own legislation) of the 1929 Convention, because the
application of these two Articles in certain circumstances would result in
inconveniences for the POWs.”
“However, if the Convention was intended to apply retroactively to the
consequences of World War II at the time of 1949, it is necessary, in accordance with
the aforementioned principle of the non-retroactivity of treaties, to place an express
provision of such intent in the Convention. No such provision had been included in
the Convention, and, therefore, it cannot be admitted that the contracting parties to
the Convention intended to apply its provisions retroactively. This conclusion is
further justified from the evidences of the drafting process of the Convention, where
the retroactivity of the Convention was never discussed.
The USSR made reservation. . . . to Article 85 of the 1949 Convention as
follows:
‘The Union of the Soviet Socialists Republic does not consider itself bound
by the obligation, which follows from Article 85, to extend the application of
the Convention to POWs who have been convicted under the law of the
Detaining Power, in accordance with the principles of the Nuremberg trial, for
war crimes and crimes against humanity, it being understood that persons
convicted of such crimes must be subject to the conditions that apply to those
who undergo punishment in the country in question. . . .’
From this reservation, it can be inferred that the USSR believed it appropriate for
those persons convicted for war crimes and crimes against humanity to be subject to
the same treatment as the prisoners punished by the Detaining State, and not to be
treated as POWs under the 1949 Convention. It cannot be clearly inferred from the
reservation, however, the position of the USSR as to whether the Japanese POWs
detained by the USSR during World War II were within the scope of the 1949
Convention. . . . If the Japanese POWs had remained to be detained in the USSR
when the 1949 Convention became applicable as between Japan and the USSR, it
may be that, as legal effect of Article 141, those POWs are entitled to enjoy the
protection provided by the Convention. . . . In light of the general principle of
non-retroactivity of treaties, however, it is hard to conceive that the sole purpose of
the USSR’s reservation to Article 85 lies in avoiding the application of the
Convention to the POWs who had already returned to Japan. . . . There exists no
other evidence that is sufficient to establish that there were intentions to apply the
Convention to all the consequences of World War II. Accordingly, with regard to the
plaintiffs other than X1, X2 and X3, Articles 66 and 68 of the Convention is not
applicable.”
(4) “The cases of the plaintiffs X2 and X3 were in quite a different situation,
because they were repatriated to Japan in 1956, when the 1949 Convention had
already become applicable as between Japan and the USSR.”
“The Court finds that X2 was extradited as a suspected war criminal to the
Government of China, and imprisoned in Fushun prison in China without being
compelled to work until his return. The Court also finds that X3, who had been
compelled to work at a camp in the Chita region till August 1948, was imprisoned
and compelled to work at a POW camp, after being sentenced to reform labor for
twenty-five years in February 1949, on charges of espionage while he had been a
policeman in Manchuria. In the findings of the Court, it is established that the case of
X2 does not fall in the category of POWs who remained under detention after the
Convention had become effective as between Japan and the USSR, and the case of
X3 who had been convicted under the law of the USSR is the very kind of case for
which the USSR reserved the application of the 1949 Convention. The Court,
therefore, concludes that Articles 66 and 68 are not applicable to both cases.”
4. “Thus the claims of the plaintiffs shall not be justified on the basis of application
of Articles 66 and 68 of the 1949 Convention.”
V. “Claims based upon International Customary Law
The plaintiffs further argued that a rule had been established as an international
customary law, by the end of World War II at the latest, to the effect that a State to
which the POWs belong should be liable to pay wages of POWs during their
detention and compensation for damages caused by labor imposed during their
detention, as well as reparation for damages, including mental, caused by extremely
long duration of detention or by forced labor, so long as they had not been settled by
the detaining State. This alleged rule, hereinafter referred to as the “Rule of
compensation by States on which POWs depend,” was so termed by the plaintiffs
regardless of which of the two, that is, the detaining State or the State to which the
POWs belong, should bear the amount ultimately. The plaintiffs, therefore,
maintained that they were entitled, as a result of their detention by the USSR, to lay
claims against the defendant on which they depend.”
“The Court shall determine in the following whether a customary international
rule as asserted by the plaintiffs had been established by the end of World War II or
at the time when the plaintiffs had been detained in the USSR.”
“ ‘Prisoners of War’ and ‘Surrendered Enemy Personnel’ Defined
Whether the plaintiffs are to be regarded as ‘Prisoners of War’ under
international law is not self-evident, because, in the history of the law of POWs, the
conventions had gradually expanded the scope of application. . . . The creation of
modern international law on the treatment of POWs began in the eighteenth century,
and the Geneva Convention, which was signed by twelve States in 1864 and ratified
by 1867 by all major Powers except the U.S., provided the basis for the Geneva
Conventions concluded later on. The initial Geneva Convention was ratified by the
U.S. in 1882 and acceded to by Japan in 1886.”
“In 1899, at the first Hague Peace Conference, which had been proposed by the
Czar of Russia, the Convention concerning the Laws and Customs of War on Land
and the Regulations of the Laws and Customs of War on Land annexed thereto were
adopted to regulate the status of POWs. . . . Subsequently in 1906, the Geneva
Convention (Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field) was adopted. . . . The latter Convention, in
Articles 1 and 2, restricts the status of POWs to those with the qualification of
combatants who surrender and is not intended to apply to those who have been
disarmed as a result of unconditional surrender or the like by the State to which they
belong.”
“In 1907, the second Hague Peace Conference was held and the Hague
Regulations on Land Warfare were adopted. . . . With the outbreak of World War I in
1914, further problems were raised with regard to the status of POWs, and the 1929
Convention was adopted at a diplomatic conference convened in the same year.”
“The 1929 Hague Regulations recognized in Articles I to 3 the status of POWs
for not only members of a military force but also for members of militia as well as
volunteer corps, but they did not contain any provision as to the status of those
detained after the State to which they belong surrenders unconditionally. Article 1 of
the 1929 Convention . . . retains such a traditional concept of POWs.”
“When World War II ended, the officers and soldiers of the Japanese armed
forces who fell under capture by forces of the Allied Powers as a result of Japan’s
unconditional surrender were called ‘Surrendered Enemy Personnel.’ The
Government of the U.S. stated on 1 March 1947 that these persons (hereinafter
abbreviated as SEPs) should be deemed as POWs and be entitled to treatment in
1.
accordance with the 1929 Convention. The International Committee of the Red Cross
also expressed its view that SEPs should be granted treatment as POWs.”
“The 1949 Convention was concluded as a further step in the development of the
law of POWs. It provides in Article 4 that ‘POWs, in the sense of the present
Convention, are persons belonging to one of the following categories who have
fallen into the power of the enemy. . .’and in Article 5 that ‘[the] Convention shall
apply to the persons referred in Article 4 from the time they fall into the power of the
enemy and until their release and repatriation.’”
“The Court finds, in the history of the development of international law on the
treatment of POWs, a continuous expansion of the concept of POWs as due to be
granted the protection of international law. But the rule on the treatment of POWs
that was applicable at the time of World War II and as between Japan and the USSR
was that of the Hague Regulations on Land Warfare. . . . And if the Hague
Regulations are applied, Japanese officers and soldiers such as the plaintiffs, who fell
into the power of the USSR armies and were detained as the result of Japan’s
unconditional surrender, cannot be said to belong within the concept of POWs.”
“In the following, therefore, the Court must proceed to examine the question of
the creation and application of customary international law. This is because the
question whether or not it approves the claim of the plaintiffs, who were Japanese
soldiers who fell into the power of the USSR and were detained by it after Japan had
surrendered unconditionally and disarmed, amounts to the question whether or not
the ‘Rule of compensation by States on which POWs depend,’ on which the
plaintiffs based their claim, was established as customary international law. The
question is essentially a matter of determining the existence and contents of
international customary law.”
“Development of International Law on Compensation for POWs
A brief survey of the development of international law on the question which
State, the detaining State or the State on which the POWs depend, incurs the
compensations for labor wages while POWs are detained and for injuries caused by
diseases or by labor, as well as reparation for damages caused by long-term detention
or forced labor, . . . proves the following as facts, and there is no evidence to prove
the contrary.”
2.
(1) “The Hague Regulations, in Article 6, paragraphs 3 and 5, and Article 17,
provided with regard to the wages to be paid to POWs as follows:
‘Labor performed for the government shall be paid for according to the
schedules in force for soldiers of the national army performing the same labor,
or, if there is no such schedule, then at rates commensurate with the work
performed,’ (Article 6, paragraph 3, translation from the authentic text in
French)
‘The wages earned by the prisoners shall be utilized to mitigate their situation,
the surplus being credited to them upon their discharge, after deducting the
cost of maintenance,’ (Article 6, paragraph 5).
‘Officers who become prisoners shall receive the pay to which officers of the
same grade are entitled in the country where they are being detained, the
amount to be repaid by their government.’ (Article 17).”
(2) “World War I, which occurred in 1914, was really the first total war in the
history of international relations, and it was shown in the course of war that the rules
concerning POWs in the Hague Regulations were not necessarily clear.”
“For example, no specifications were made in the Hague Regulations as for when,
how, from whom and what kind of compensation POWs are entitled to be paid, in
cases where POWs are injured by accident or by contraction of disease that arose
from labor while in detention.”
“The belligerent Powers on that account concluded several provisional
agreements to supplement the Hague Regulations. In 1917, a multilateral agreement
on POWs was concluded at Copenhagen, which adopted the proposal of Russia that
the detaining State was liable in this regard to the same extent as to its own
nationals.”
“On 14 July 1918, Great Britain and Germany concluded a bilateral Agreement
concerning Combatant Prisoners of War and Civilians, which provided different
procedure from the Copenhagen Agreement with regard to compensation for injuries
arising from labor activity; that is, Article 32, paragraph 4, provides that ‘in the case
of any accident happening to a POW while at work, a certificate stating the nature of
the accident shall be given to him by the authorities of the captor State on his
liberation.’ Both governments agreed that the obligation of the detaining State in
such a case would be fulfilled by issuing the POW a certificate of the accident when
he is released.”
“On 11 November of the same year, the U.S. and Germany concluded between
them the Agreement regarding Prisoners of War, Medical Personnel and Civilian
Internees, in which it was laid down that the POW should be paid for his work done
for the detaining State, the net balance recorded to the credit of the POW should be
paid to him upon his internment in a neutral country or upon his repatriation (Article
51) and the State to which the POW belongs should ultimately reimburse the
detaining State for all payments made by the latter to the POW. (Article 132).”
(3) (i) “Incidentally, Article 27, paragraph 4, of the 1929 Convention provided that
the detaining State was liable to compensate for damages caused by injuries arising
out of accidents while the POWs were at work. . . . This provision is similar in its
effect to that of the said Copenhagen Agreement, but the provision had been pointed
out from the outset as entailing practically certain difficulties in trying to apply it to a
particular case. Thus inquiries were made to the International Committee of the Red
Cross about the duration of responsibility, such as whether the responsibility of the
detaining State was to cease upon the release of the POWs or whether the provision
in question had the effect of disallowing lump-sum payments to a person entitled to
claim compensations or to his transferee, and so on.”
“In response to such inquiries, the Committee informed that some states
interpreted the provision, on the basis of reciprocity, as denying the termination of
the detaining state’s responsibility upon the release or return of the POWs, but others
did not. “
(ii) “Although the 1929 Convention. . . . provided that the credit balance of a
POW was to be paid by the detaining State, the observance of these obligations
actually became extremely difficult because most of the countries assumed a rigid
attitude toward import and export of foreign currencies after the end of World War
II.”
(4) “Considering these conditions, . . . the 1949 Convention provided that damages
of POWs for which the detaining State or its organ is responsible should be
compensated and paid by the detaining State; and as for the ultimate bearer of
compensations for POWs, the Convention provides in Article 67 that the advance
payment of salary by a detaining State shall be considered as done in lieu of the State
on which the POW depends. This further provides that the advance payments of
wages, which have been credited by the detaining State in the account of the State on
which POW depends, after the POW’s receiving notification of the payments sent by
the detaining State to the State on which the POW depends through the Protecting
State in accordance with Article 63, paragraph 3, as well as all other payments made
by the detaining State in accordance with Article 68, shall be the subject of
arrangements between the States concerned at the close of hostilities.”
(5) “Thus the positive international law concerning the treatment of POWs changed
considerably. In summery:”
(i) “The advance payment of salary, which had been admitted only for officers in
the Hague Land War Regulations, was extended in application to others equivalent to
officers in the 1929 Convention, and to all POWs in the 1949 Convention. But there
was no change in the principle that the ultimate bearer of the payment shall be the
State on which the POW depends.”
(ii) “As for the labor wages and the cost of supplies to POWs, the Hague Land
War Regulations provide that the cost of supplies to POWs shall be subtracted from
the labor wages and that the remainder of the expenses shall be delivered to the POW
on his release. The 1929 Convention provides that it is obligatory for the capturing
State to supply for the POW and, as for the labor wages, the capturing State shall
deliver at the end of detention a credit balance subtracting the cash already delivered
to the POW. In contrast, the 1949 Convention provides that the detaining State shall
supply the POW for free, and that the labor wages shall be recorded in a credit
account and the amount paid upon the request of the POW shall be debited in the
POW’s account. It further provides that when the status as POW is terminated, the
detaining State shall deliver to the POW a certificate indicating the credit balance of
the POW and the State to which the POW belongs shall be responsible for the
settlement of such credit balance.”
(iii) “As for the compensation for damages caused by labor accidents, the Hague
Land War Regulations had no provision at all, and the 1917 Multilateral Agreement
concerning POWs specifies this is the obligation of the detaining State. The Great
Britain-German Agreement of 1918 merely provides for the detaining State’s
obligation to issue a certificate of an accident. The 1929 Convention approved the
responsibility of the detaining State to compensate. The 1949 Convention admits the
detaining State’s obligation to issue the certificate of an accident and provides that
the claim for compensation shall be made against the State on which the POW
depends, leaving the ultimate bearer of the compensation to be determined through
agreement between the states concerned.”
(iv) “As for monies and valuables of the POW, the 1929 Convention provides
that the POW shall keep his valuables and that his monies impounded shall enter the
account of the POW and the credit balance of the POW shall be paid at the end of the
captivity. The 1949 Convention provides that the compensation for those personal
effects, monies and valuables impounded by the detaining State, which were not
restored to the POW on his repatriation, shall be claimed to the State on which the
POW depends, and that the payments made to the POW by the State on which the
POWs depends shall be the subject of arrangement between the States concerned at
the close of hostilities. ”
(v) “As for compensation for damages the POW suffered, for which the detaining
State or its servants are responsible, the 1949 Convention, for the first time in the
history of law concerning POWs, provides that it be disposed by the same procedure
as in the case of monies and valuables impounded by the detaining State.”
“The Court finds that international law has changed toward guaranteeing more
effective protection and improved treatment of POWs.”
3. “State Practices Concerning Compensation for POWs of Their Nationality after
the Second World War” [omitted]
4.
“The Question Whether the Principle of Compensation by States on Which
POWs Depend Has Become International Customary Law”
(1) “The requirement for international customary law to be recognized”
(i) “General Practice”
“A general practice is the factual usage that has come to have the generality by
the accumulation of practice by states that have special interests in the matter.”
“In order to be recognized as general practice, it is necessary for the state practice
to be repeated and to acquire constancy and uniformity. The International Court of
Justice held in its judgment that when there is uncertainty, contradiction, inconstancy
or lack of uniformity in state practices and the views expressed in public, such facts
hinder the establishment of international customary law (Asylum Case of 1950). But
the Court also held that even if there is minor uncertainty and contradiction in state
practices, which can be persuasively explained by the peculiar nature of events and
situations in which such state practices took place over a long period of time, it may
be interpreted as fulfilling the requirement to be recognized as a general practice
when the same state practices are repeated in the main and become fairly
predominant with general tacit consent of a large number of states (Fisheries Case of
1951).”
“As to the question how many countries are required to follow such state
practices in order for it to be recognized as a general practice, this Court holds, in
abstract, that it is necessary for a large consensus to exist among nations that have
important interests in the matter.”
“As to the question of how long it is necessary for a constant and uniform state
practice to be repeated continuedly, the ICJ held in its judgment that it is sufficient if
a state practice, with those countries that have special interests in the matter included,
has become widely accepted and uniformly followed, even if a considerable lapse of
time has not passed (North Sea Continental Shelf Case of 1969).”
(ii) “Opinio Juris
Opinio juris means that a state conducts a particular action, recognizing that such
action is required as obligatory in international law.”
“Some say that the existence of general practice should be taken as a more
important requirement for the creation and recognition of international customary
law, and that, unless there is proof that the will to exclude the states’ uniform action
is especially expressed, the existence of general practice may be interpreted as proof
of opinio juris. Certainly, since it is not easy to prove the existence of such a
subjective and psychological element pertaining to opinio juris in a concrete case,
there will eventually be no way but to infer indirectly from the actual action of the
states concerned. But the practice that cannot be proved to have opinio juris has to be
regarded as mere practice or usage as a matter of fact and cannot create customary
law.”
“In the North Sea Continental Shelf Case referred to above, the ICJ held as
follows; ‘Not only must the actions concerned amount to a settled practice, but they
must also be such, or be carried out in such a way, as to be evidence of a belief that
this practice is rendered obligatory by the existence of a rule of law requiring it. The
need for such a belief, i.e., the existence of a subjective element, is implicit in the
very notion of opinio juris sive necessitatis. The States concerned must therefore feel
that they are conforming to what amounts to a legal obligation. The frequency, or
even habitual character of the actions is not in itself enough. There are many
international actions, e.g., in the field of ceremonials and protocol, that are performed
almost invariably but are motivated only by considerations of courtesy, convenience
or tradition, and not by any sense of legal duty.’”
“Still, also included in opinio juris is the case where a state takes an action while
recognizing it not as a legal obligation but as being permissible under international
law (permissible provision). (See the judgment of PCIJ in The Lotus Case of 1927.)”
(2) “The Question whether ‘the principle of compensation by the State on which a
POW depends’ has been established as international customary law”
(i) “General Practice”
a) “It is generally recognized that diplomatic correspondences, statements of
policy, opinions of the legal division of the Government, announcements in
newspapers, judicial decisions, domestic laws and orders, decisions and measures
taken by administrative organs, the accession to and approval of international
instruments, opinion pro or con to draft treaties, etc., are valuable and decisive
evidences of a general practice, which proves the existence of international
customary law. Resolutions of the United Nations and other international
organizations may also constitute evidences of a general practice, if they reflect and
affirm the content of current international law, judging from the number of states that
voted for the resolutions at their adoption, the implementation and subsequent
application by states after their adoption, etc.”
“With regard to the principle of compensation by the State on which a POW
depends, which is at issue in the present case, the actual practice of States in making
compensation to POWs up to the conclusion of the 1949 Convention undoubtedly
constitutes state practice.”
b) “Among the belligerents in World War II, the U.S., France, Canada, West
Germany, and Austria after the war ended enacted domestic laws that provided
several kinds of compensation for POWs of their nationality. . . . The U.K. paid the
labor wages to British POWs held by Japan, while the Government of Japan took
special budgetary measures and paid the credit balance to Japanese POWs held by
Australia, New Zealand, Southeast Asian countries and the U.S.”
“Then, Articles 66 and 68 of the 1949 Convention, which make it the
responsibility of the State on which a POW depends to pay the credit balance from
his detention and compensation for damages caused by labor accidents, were adopted
unanimously at the plenary session of the Geneva diplomatic conference. Moreover,
no state has made reservation to the said Articles in ratifying and acceding to the
Convention.”
c) “To the contrary, however, it is true that there exist not small number of state
practices that are not in conformity with the generality of the practice of the principle
of compensation by the State on which a POW depends.”
“In the course of the drafting of Articles 66 and 68 of the 1949 Convention, there
were opinions against the principle of compensation by the State on which a POW
depends, and the original draft on the above two Articles had provided a formula of
compensation by the detaining State.”
“At the conference held on 2 May 1949, which had been convened for the
purpose of examining the 1949 Convention, it was decided to set up a special
committee to examine those Articles, including Article 66, that had aroused essential
differences of opinion. This special committee thought it appropriate to have some of
the problems that were especially difficult and of a technical nature to be discussed
by a working group or a group of experts. Accordingly, the financial problems of
POWs (from Articles 58 to 68) were referred to and examined by a committee of
experts on accounting. This committee has held ten meetings.”
“In fact, it was after these meetings that the representatives of 17 countries signed
the 1949 Convention; and later, by the end of 1958, 74 countries either ratified or
acceded to the Convention. By the end of May 1972, 130 countries had become
parties to the Convention. None of them made a reservation to Article 68, while Italy
alone had made a reservation to Article 66 at the outset but later withdrawn it.”
(ii) “Opinio juris”
“Opinio juris, as a requirement for the establishment of international customary
law, is observed when States concerned act in a certain way with a conscience that it
is required as an obligation of international law, and when States exercise such a
practice intending to comply with such an obligation. The aforementioned precedents
of some Western States on the payment of annuities to those soldiers and to the sick
and wounded soldiers of their nationality who had become POWs in World War II,
may be considered as measures taken domestically to help promote the welfare of
their nationals. There is not sufficient documentation to know whether or not those
States understood such measures as implementation of the obligation of the detaining
State set in the 1929 Convention to compensate for damages of POWs caused by
labor accidents while they are detained. Likewise, it is difficult to know how those
States made distinction between applying payment of annuities by States on which
POWs depend and obligatory compensation by the detaining State. However, there is
no evidence to believe that the payment of annuities for soldiers and for the sick and
wounded soldiers who had become POWs had been done as for fulfillment of a legal
obligation under international law. The same is true as to various other
compensations made toward those European and American nationals who had
become POWs during World War II.”
“As for the earlier mentioned payments made by the Government of Japan to
those Japanese officers and soldiers who had returned to Japan possessing a
certificate for credit balances, a personal account card, labor wage card, a deposit
receipt for cash and the like, the Government of Japan had expressed to the GHQ
(General Head Quarter of the United Nations) that Japan desired such payments to be
ultimately heated by the United Kingdom. This fact makes it hard to conclude that
the Government of Japan had made such payments as fulfillment of its obligation
under international law. It can be observed that the Government of Japan had made
those payments substituting provisionally the obligation to make payments of the
detaining State.”
(iii) “Summing up”
a) “The Court is in the opinion that it is doubtful that there existed international
customary law to the effect that compensation for POWs should be made by a state
of their nationality. This is because, as for the requirement of the establishment of a
general practice, although the United States, France, Canada, West Germany, Austria,
and the United Kingdom had compensated for damages to POWs of their respective
nationalities, before and after the 1949 Convention, practices that had taken place
after the conclusion of the Convention do not warrant the argument by the plaintiffs
to the effect that Articles 66 and 68 of the 1949 Convention are merely codifications
of international customary law, that is to say, confirmation or declaration of the then
existing international customary law. It is, therefore, without ground to conclude that
those practices constitute the general practice establishing a rule of law as for
compensation asserted by the plaintiffs. Putting this aside, it is hard to find evidence
to prove that other belligerent States, such as the USSR, China, the Netherlands, etc.,
had followed such state practices during World War II. As previously mentioned,
Japan had on certain occasions ever paid compensations, but it did so merely to
substitute provisionally the compensation of the detaining State. In this sense, Japan
has never paid compensation for damages caused by accidents at work, nor
compensation for credit balances to Japanese officers who had become POWs in a
belligerent enemy State. To sum up, there remains much doubt in concluding that a
general practice existed amongst the States concerned during World War II.”
“In addition to this, as for opinio juris, it cannot be known whether those States
that had paid compensations for their nationals did so as a matter of domestic policy
or as fulfillment of an obligation under international law.”
“Thus it cannot be duly said, notwithstanding the plaintiffs’ assertion, that
international customary law equivalent to Articles 66 and 68 of the 1949 Convention
existed as late as the conclusion of the Convention, not to mention at the end of
World War II. Therefore, it must be concluded that no customary international law
was established at the time when the plaintiffs were detained in Siberia.”
b) “The plaintiffs assert that the customary rule of compensation by the State
on which POWs depend, i.e., that the State on which the POWs depend is under an
obligation to pay for their credit balances obtained in the detaining State at the end of
their captivity, and it also bears an obligation to compensate for damages caused by
labor accidents, is effective as domestic law as a legal effect applying Article 98,
paragraph 2 of the Japanese Constitution. On this ground, the plaintiffs claim that
they have acquired the right to claim compensations against the defendant in this
case.”
“This assertion by the plaintiffs seems in search of support in the self-executing
effects of international law. Incidentally, the concept of self-executing character
signifies that domestic courts or administrative organs can decide the legal
relationship between private citizens directly applying international law, that is,
without taking specific measures such as implementing or incorporating rules of
international law into domestic law. Or it means that, because the laws and
regulations of international law are sufficiently clear and detailed for rules of
international law to be applied directly as domestic law, without making it necessary
for domestic executing organs to judge the contents of such laws and regulations in
each individual case. It is the general tendency of contemporary constitutional
practices of many states to apply international customary law automatically and
comprehensively as a part of domestic law, without taking any special measures of
transformation into domestic law. Article 98, paragraph 2 of the Japanese
Constitution, which provides “The treaties concluded by Japan and established law
of nations shall be faithfully observed,” may well be construed as recognizing the
direct domestic validity of international customary law.”
“Incidentally, because international law is law that primarily regulates legal
relationships between states, it is states that are the subjects of the rights and
obligations of international law in general, and, therefore, even in cases where an
individual’s private interests are protected, in some way or other, under international
law, it is through the exercise of the right of diplomatic protection that a state as
against other states realizes the protection of the interests of such individuals.”
“In contrast, however, in case international law is domestically valid, a private
person and the State to which such a person belongs stand in direct legal relationship,
to which international law is applied or executed by the governmental organs
domestically. But for international customary law to have self-executing quality, it is
necessary that its existence and detailed contents be particularly distinct. This is
because, not like the statutory rule of international law, that is, conventional law,
which is valid only among the restricted number of states that have ratified or
acceded to it, international customary law generally binds all states of the
international society, it needs much duration of time, in most cases, to be established
as law, and it by nature lacks exactness in comparison with written international laws
and regulations. Especially if international customary law entitles a private person to
lay claims in concrete cases, the requirement for obtaining rights and their legal
effects must be definite and detailed.”
“To meet the problem of compensations for POWs, as dealt with in the present
case, not a few states established by domestic law institutions of annuities for
soldiers, annuities for those diseased or wounded, compensations for damages caused
by labor accidents, etc., even prior to World War II. In such circumstances, in order
for the rule of compensation by the State on which a POW depends to become
established as an international customary law, the content of the rules of law, as to
qualification of a person to be compensated, and the content, method, duration, etc.
of the compensation must be very definite and detailed. It is also a difficult problem
to determine the relationship between such customary rules and regulations of
international law and those domestic laws on compensation, especially in cases
where international customary law and domestic law come into conflict.”
“In such circumstances, it is observed that states have not necessarily in practice
recognized unconditionally the self-executing domestic effects of international
customary law.”
“With regard to the rule of compensation by the State on which a POW depends,
which is the subject matter in the present case, to recognize such a rule to be
established as international customary law is extremely difficult, because it is
impossible to know what kinds of concrete rights are to be obtained and when and
what kind of requirement is to be fulfilled, by examining the substance of the rules of
domestic law, which differs considerably as to the reach of POWs to be compensated
as well as the measures and the contents of the compensation, due to the different
domestic conditions of states. Therefore, the plaintiffs’ assertion that the rule of
compensation by the State on which POWs depend had become international
customary law at the time of detention of the plaintiffs cannot be upheld.”
“Conclusion
As mentioned above, the Court finds that the claim by the plaintiffs based on
customary international law is without ground, which makes it unnecessary to judge
other points discussed by the plaintiffs.”
7.
VI. “The Claim for Compensation for Losses on the Basis of the Constitution”
1. “The Claim for Compensation in Respect to Losses under Article 29, Paragraph
3 of the Japanese Constitution
The plaintiffs alleged that they had the title to claim against the USSR, under
international law, for the payment of labor wages as POWs, for the compensation for
damages arising out of detention by the USSR and for forced labor imposed by the
USSR.”
“They further asserted they had the title to claim for the compensation for
damages caused by detention and forced labor as well as to claim for the return of
unjust enrichments under domestic law of the USSR. These titles for claim against
the USSR were renounced by the second sentence of paragraph 6 of the Japan-USSR
Joint Declaration of 1956. The plaintiffs argue that they have the claim for
compensation against Japan for losses under Article 29, paragraph 3, of the
Constitution of Japan, on the ground that the said renounciation imposed an
extraordinary sacrifice only on the plaintiffs. Therefore, this Court examined this
point in the following.”
“Firstly, since international law is a law governing the relations between states,
individuals are not considered as subjects thereof. Even when international law
protects interests of private persons, i.e., their lives, bodies, property, etc.,
international law protects them indirectly by imposing upon states the obligation not
to offend individuals’ rights and interests, and by providing, in regard to the violation
thereto, only measures of indirect relief as exercising the diplomatic protection by the
state to which those individuals belong. There is no legal institution to make it
possible for individuals to realize directly their claims for the restoration of their
rights as against a state other than the one to which they belong. That is, individuals
have no effective measure for that purpose in international law.”
“Laws and rules regarding POWs, which aim at ensuring their humanitarian
treatment, concern directly the protection of individual rights and interests of the
POWs, but indirectly aim to protect the interests of the State on which POWs depend.
Although it is undoubtedly true that they impose upon the capturing State or the
detaining State various kinds of obligations relative to the treatment of POWs, the
only measures for carrying them out are through mediation and intervention by the
protecting State and the collection and communication of information by the Central
Prisoners of War Agency established in the Neutrals (the Hague Land War
Regulations and the 1949 Convention). There are no effective measures provided by
which individuals as POWs in international law may coerce the capturing State or the
detaining State to observe the laws and rules of POWs.”
“As mentioned above, since the rights or interests enjoyed by individuals in
international law cannot be coercively realized except through the exercise of the
diplomatic protection of the State to which they belong, the enjoyment of the rights
and interests cannot but become a matter to be domestically resolved in the relations
between them and the State to which they belong, unless foreign States concerned
voluntarily fulfill the claims. Therefore, because the defendant renounces, in the
Japan-USSR Joint Declaration, claims against the USSR who did not let the
plaintiffs, the detainees in Siberia, enjoy the alleged rights and interests, and has no
intention of making reparation voluntarily, it cannot be judged that the defendant
hinders the realization by the plaintiffs of rights and interests to be materialized by
the USSR.”
“Secondly, it must be enquired hereby as to the question whether the plaintiffs
may have the claim for damages arising out of the long-term detention, forced labor,
and the confiscation of their personal effects, as against the USSR under the
domestic law of the USSR.”
“Article 407 of the Civil Code of the USSR, which provides for the state’s
liability for reparation for damages, must be interpreted as not applicable for
damages caused by long-term detainment and forced labor in Siberia of the Japanese
POWs. In regard to the acts of confiscation and non-restoration of personal effects by
the military of the USSR, it can be found that it has been impossible to satisfy the
conditions required by the Civil Code of the USSR to make claims against the USSR
domestically, i.e., the sufferers make claims against the illegal acts in proper time,
the acts are determined unlawful by judicial organs or by the administrative organs
that have jurisdiction, or the acts are judged as illegal or punitive by the decisions of
judicial or administrative organs. Therefore, there is no sufficient ground to find that
the plaintiffs had ever acquired rights to claim reparation for damages under the
domestic law of the USSR and that the USSR had ever been liable under the USSR
law to compensate for damages of the plaintiffs arising out of the long-term detention
and forced labor, which the USSR had undertaken as an implementation of its policy.
Such being the case, the assertion by the plaintiffs by reason of their loss of claims
under the USSR law is unfounded, making it needless to judge other points of the
assertions.”
2. “The Claim for Compensation by the State of Japan on the Basis of the Japanese
Constitution
The plaintiffs claim that the State of Japan shall pay compensations for the
special kind of damages incurred by a private individual in case these damages have
arisen out of certain conduct by the state. It is asserted by the plaintiffs that the
defendant had started World War II without educating the Japanese officers and
soldiers, including plaintiffs, on the rights of POWs recognized under international
law. It is further asserted that the State of Japan should have given sufficient and
deliberate considerations in diplomatic negotiation in accepting the Proclamation of
Three Powers at Potsdam in order to ensure the prompt repatriation of the Japanese
POWs. The fact is, however, that Japan accepted the Proclamation without settling
any measures to prevent detention by the USSR, although it had been well foreseen
that the USSR had the intention to capture Japanese soldiers as POWs and impose
forced labor upon them under the name of war indemnities. Neither was any
provision to prevent detention inserted in the Japan-USSR Armistice Agreement.
This being the case, the plaintiffs asserted that the State of Japan passively
contributed to their detention in Siberia and subjection to forced labor. Further, Japan
neglected to take measures for the early return of the Japanese soldiers and did not
supply goods to the POWs, thereby causing the plaintiffs to bear treatment of slavery
and severe servitude, which were entirely different from normal war damages. It is
because of these considerations, according to the assertion of the plaintiffs, that the
USSR renounced its claims to war indemnities from Japan, i.e., in order to
compensate for the labor of plaintiffs. The plaintiffs, therefore, conclude that they
have claims for compensation by the defendant on the basis of the basic principle of
redress for damages and losses as expressed in such Articles as 11, 13, 14, 17, 18, 27
and 40 of the Japanese Constitution.”
“In examining this issue, it can be seen that both Article 17, which provides for
the responsibility of the state or public entities to compensate for damages caused by
the illegal acts of public officials, and Article 40, which provides for the
responsibility of the state to compensate those detainees who have been sentenced as
guilty and afterward determined not guilty and acquitted are not substantive laws that
give rise to concrete rights. For those articles to be materialized, it is necessary that
they be supplemented by statutory laws defining the requirements for rights to claim
to be acquired as well as their substantive contents. Article 11 merely provides for
the general principle regarding fundamental human rights, Article 13 for the
principle of respect for individuals, Article 14 for the principle of human equality,
and Article 18 for the assurance of freedom of the human body. All these articles
enunciate the guiding ideas of the government and, although they have the effect of
denying the validity of laws and actions of the administrative body or private
individuals that do not accord thereto, none of them provides the basis, as substantive
law, for a claim against the state to compensate for damages.”
“In contrast, Article 29, which provides for the inviolability of property owned
by private individuals, and the obligation to compensate in cases where that property
is taken for public use, has been recognized recently as constituting the basis, as
substantive law, for claim of compensation in cases where legislative or
administrative measures placed restraints upon property rights without providing for
compensation. In this sense, the damages incurred onto the plaintiffs from forced
labor and detention in Siberia were non-property damages caused by the slavery
detention of the human body and severe servitude, involving economic damages, that
is, the loss of labor power during the detention. Thus, along with the loss of
confiscated or unreturned personal effects, it is probable that such damages may be
the basis of claims for compensation under Article 29, paragraph 3, of the Japanese
Constitution.”
“Incidentally, the damages and losses incurred onto the plaintiffs arose out of the
participation of the USSR in the Japan-China War and the Pacific War . . . . and such
damages caused by long-term detention and forced labor are inevitably a part of the
war damages brought about by World War II.”
“As engagement in war against other nations is a vital and critical situation that
concerns the existence of the nation itself, all the citizens must, whether they like it
or not, endure sacrifices of life, body or property to a certain degree. Such sacrifices
are something that must be equally endured by all the citizens as war damages, and
compensation for such sacrifices is a matter not anticipated by the Constitution,
and . . . . as seen in domestic practices of other states, it is an issue that should be
resolved through Legislation.”
“Therefore, the plaintiffs’ allegation of a claim for national indemnities on the
basis of Article 29, paragraph 3, of the Constitution as the fundamental norm for the
compensation of damages and losses, cannot be upheld.”
“Claims for Damages on the Basis of Article 1 of the State Redress Law or on
the Basis of Illegal Acts
The plaintiffs assert that the defendant not only had delivered them to the USSR
and left them under long-term detention and forced labor but had exercised illegal
public power through acts or omission, such as by waiver of the plaintiffs’ claim
against the USSR under paragraph 6, sentence 2 of the Japan-USSR Joint
Declaration, or by not taking any measures to compensate for the above damages
until the present. The plaintiffs, on this account, asserted the damages are caused by
willful acts or negligence of the defendant or its public officials, and, therefore, they
have a claim for damages on the basis of Article 1 of the State Redress Law or on
illegal acts committed. The Court will examine on the assertion in the following.”
“Firstly, the assertion by the plaintiffs that Japan had delivered its soldiers to the
USSR . . . . is not proved by facts. The plaintiffs also asserted that the defendant
anticipated the USSR to have an intention to transport the Japanese POWs into the
USSR territory to enforce compulsory labor under the name of war reparations,
thereby contributing to the realization of such Soviet intention. But no evidence is
found to prove such as fact. . . . As for the issue of the waiver of the plaintiffs’ claim
against the USSR in the Japan-USSR Joint Declaration, the Court’s opinion is as
stated previously.”
“The plaintiffs further assert that Japan left untouched the matter of long-term
detention and forced labor by the USSR. But it is the fact known to the public that,
with the unconditional surrender of Japan, its sovereignty was restricted until the day
of effectuation of the Peace Treaty, and the ruling power of the Emperor and of the
Government of Japan was subjected to the restriction of the Supreme Commander for
the Allied Powers (SCAP), who was entitled to arrange necessary measures for the
VII.
implementation of the surrender clause. Because the Allied Powers had taken
policies to govern Japan indirectly, Japan was able to promulgate a Constitution and
to enact laws by the Diet and implement them. However, before the effectuation of
the Peace Treaty, Japan had no powers of diplomacy and held no means of exercising
its sovereignty as against other States. In such circumstances, even if the
Government of Japan had a desire to put an end to the long-term detention by the
USSR and forced labor imposed onto the Japanese POWs, there existed no effective
measures to attain the object. Further, it was not that the Government of Japan had
not made any efforts. . . . On 13 September 1945, the Government of Japan requested
support of SCAP’s GHQ on the issue of the repatriation of the Japanese detainees.
The GHQ thereupon requested the Government of the United States to negotiate with
the USSR and, as a result, an agreement was reached between the U.S. and the USSR
on 19 December 1946, for Japanese POWs to be repatriated at the rate of 50,000
persons a month. Moreover, in March 1947, since the agreement had not been
sufficiently implemented by the Government of the USSR, the U.S. demanded of the
USSR its strict and effective implementation. SCAP on several occasions thereafter
protested against the USSR on this issue and otherwise pursued USSR to fulfill its
responsibility under the agreement.”
“Anyway, although the role played by the Government of Japan was not
remarkable, it must be said that there is no room to admit a right of the plaintiffs to
claim for redress by the State of Japan, because Japan, under the occupation of the
Allied Powers, could not exercise its right of diplomatic protection.”
“Next, the plaintiffs assert that the defendant took no measures to provide
compensation for the plaintiffs.”
“However, for the administration to take measures of compensation for the
plaintiffs, an enactment of law to empower the administration to that effect is
necessary. Thus the assertion by the plaintiffs may be construed as a question
relating to the claim for redress by the State on the ground of the omission of
legislative power, which has enacted no special laws for compensation for those who
were detained and subjected to forced labor in the USSR.”
“As mentioned earlier, the damages incurred onto the plaintiffs are nothing but
war damages, and because it is construed that compensation for those damages were
such as had not been anticipated in the Constitution, it should be judged, by the text
of the Constitution or its interpretation, that the legislature is under no obligation to
enact laws on compensation for such detainees, including the plaintiffs.”
“Such being the case, the plaintiffs’ claim for damages on the basis of Article 1
of the State Redress Law for illegal acts committed, is without reason.”
VIII.
“Claims on the Basis of a Breach by the State of Obligation to Ensure the
Safety of Its Nationals
The plaintiffs assert that the defendant, on the basis of its legal relationship with
the plaintiffs, has the obligation to ensure that the lives and health of the plaintiffs are
protected from danger, but the defended neglected this obligation, causing the
detention and forced labor imposed onto the plaintiffs in the USSR.”
“However, when a nation surrenders unconditionally, its troops stationed in a
foreign country surrender as well, and so it was an inevitable course of events that
those troops were placed under the control of the USSR as surrendered enemy
personnel, and, as stated previously, Japan’s control did not extend to them and the
plaintiffs were transferred into the USSR territory in accordance with the USSR’s
prearranged policy. Thus it cannot be concluded that there had been a breach of
obligation to ensure the safety of Japanese nationals on the part of the defendant,
merely because the State of Japan could not prevent the USSR from coercively
transferring the plaintiffs.”
“The plaintiffs further assert that when soldiers in performing their duty engage
in acts of hostility the anticipation is due that they may become POWs, and, therefore,
in order to protect the lives and bodies of the soldiers from unjust treatment that may
be inflicted onto them by the enemy, the State of Japan should have sufficiently
educated its soldiers about rights that POWs possess under international law. But the
defendant neglected such education, and instead educated the soldiers to choose
death rather than captivity, thereby inducing and doubling the unlawful and unjust
treatment by the USSR onto the POWs.”
“The defendant does not object to the opinion that the views of the Japanese
military authorities about POWs in the early Showa era, beginning from 1925 and
continuing to the end of World War II, were extraordinary and not in line with the
development of international law. Recitation of the Combatants’ Code ‘not to bear
the embarrassment as a living captive’ was compelled in Japan. (This is a fact well
known to the public.) It can easily be assumed, therefore, that Japan had not
sufficiently educated its soldiers on the rights of POWs under international law.”
“However, judging from the fact that the USSR declared war on Japan on 5
August 1945, when it was an almost established fact that Japan was defeated in war
and World War II had terminated, with the intention of utilizing the articles, labor
force, and technical know-how held by Japan in Manchuria for the recovery of the
weakened USSR, and from the fact that the treatment of those Japanese soldiers
detained in the USSR had been contemptible, especially in the year just after the end
of World War II, we can assume that the state of affairs in the USSR at that time was
the chief cause for the treatment of the Japanese POWs. In such circumstances, even
if the Japanese military had implemented an education program on international law
relating to the rights of POWs, it cannot be said that it would have been effective in
easing the hardships endured by the plaintiffs during their detention in the USSR.”
“On the ground, stated above, there is no reason to uphold that the plaintiffs have
a right to claim on the basis of a breach of obligation by the defendant to ensure the
safety of its nationals.”
“The Claim for Working Pay on the Basis of Article 14 of the Japanese
Constitution
The plaintiffs pointed out that although the defendant had made payments
equivalent to the working pay to those Japanese POWs who had returned from
Australia, New Zealand, the U.K., the U.S., and other areas, the defendant had not
done so for those Japanese POWs, including the plaintiffs, who had returned from
the USSR. This, as the plaintiffs assert, constitutes unreasonable discrimination
prohibited by Article 14 of the Japanese Constitution. The plaintiffs, therefore, allege
their right to claim for the payment of working pay due them for labor during their
detention in Siberia.”
“It has already been determined in this Court as a fact that the defendant had paid
a sum of money equivalent to the working pay due those Japanese POWs returning
from certain territories other than the USSR, on the basis of the deposit receipts for
cash, certificates for credit balances, personal account cards, etc., possessed by such
POWs. . . . It is also made clear, judging from the whole tenor of the oral
proceedings, that no conflict existed between the plaintiffs and the defendant on the
fact that the aforesaid payments had not been executed for those Japanese soldiers,
including the plaintiffs, who had been detained in the USSR. Although such
difference in treatment may have been due to the fact that those POWs detained in
the USSR, including the plaintiffs, had not possessed deposit receipts for cash or
other documents on returning to Japan, it cannot be denied that such treatment
naturally arouses a sense of inequality and injustice.”
“However, as stated earlier, Article 14 of the Japanese Constitution enunciates
the principle of human equality as nothing more than the guiding principle for the
government’s policy, and cannot be cited as a substantive law, on which a claim
against the government may be based. Hence, the plaintiffs’ assertion that they have
the right to claim on the ground of Article 14 of the Japanese Constitution has no
ground.”
IX.
“The Claim for the Payment of Cost of Supplies
The plaintiffs alternatively assert that it is clear that the defendant should bear at
least the cost of supplies borne by the plaintiffs, on the ground of the existence of the
rule to the effect that the cost of supplies for POWs shall be borne by the State to
which they belong, that is, the contract-like legal relationship between the plaintiffs
and the defendant, as well as the existence of the positive law providing the supplies
for military personnel and constituents. The plaintiffs thereupon claim for the
payment of the cost of food supplies, clothes supplies, etc., excluding salary. The
X.
Court, therefore, will consider the matter in the following.”
1. “Firstly, the plaintiffs assert . . . that when, as in this case, the detaining State
subtracts the amount equivalent to the cost of supplies from labor wages due the
POWs, and the States on which the POWs depend does not pay the cost of supplies
to the detaining States, the detaining State may appropriate the labor wages due the
POWs to the cost of supplies, so that the POWs are assumed to have advanced, in
lieu of the State on which the POWs depend, the amount equivalent to the cost of
supplies.”
“With respect to the cost of supplies, Article 7, paragraph 1, of the Hague Land
War Regulations only provides . . . for the actual obligation of the detaining State to
supply POWs, but does not allocate and impose the burden of the cost of supplies
upon the detaining State. The regulation lacks express provision as to the ultimate
bearer of the cost of supplies, and it is left to the consultation between the
belligerents concerned at the time of the termination of hostility to determine the
ultimate bearer of the cost of supplies and the manner of bearing the costs.”
“As Article 6, paragraphs 1, 4, 5 and 6 of the Hague Regulations allow the
detaining State to impose labor upon POWs other than military officers with the
obligation to pay labor wages, and paragraph 7 of the same Article permits the
detaining State to subtract the cost of supplies from the wages of the POWs, when
the detaining State actually subtracts the cost of supplies, the way to settle the labor
wages should be arranged by the above-mentioned consultation. Therefore, when an
agreement on settlement is concluded, as disposing problems arising out of war, in
relation to the bearer of the cost of supplies for POWs and the labor wages subtracted
from the cost of supplies and not paid to the POWs, the cost of supplies is settled in
accordance with the agreements as between the detaining State and the State on
which POWs depend. It is settled domestically as between the POWs and the State to
which they belong by the application of their domestic laws, and in the absence of
such laws, by legislation. The same is true with labor wages.”
“The Japan-USSR Joint Declaration of 19 October 1956 seems to be such a kind
of agreement concluded between Japan and the USSR, in which Japan and the USSR
reciprocally renounced all claims arising out of the war since 9 August 1945. It is not
clear from the text of the agreement, therefore, whether Japan or the USSR bears the
cost of supplies for the plaintiffs. No matter whether it is, as the actual supplies for
the plaintiffs were provided by the USSR, and if Japan or the USSR is construed
through the agreement to have eventually borne the cost, the claim by the plaintiffs
against the defendant for the payments of the cost of supplies will be rejected as
ungrounded.”
“In this regard, among the claims that Japan renounced in the Japan-USSR Joint
Declaration, the claim for the wages arising out of the forced labor of POWs,
including the plaintiffs, is construed to be included. . . . As it is a fact that the USSR
appropriated many of the public and private Japanese assets in Manchuria, with a
presumed value of which was 20 billion yen at the time, so is it is a fact well known
to the public that in the battle between Japan and the USSR the Japanese armies, due
to their shortage of fire arms and their being mainly composed of auxiliary soldiers,
were not able to do anything but passively resist the USSR’s unilateral and sudden,
massive assaults; thus it can be found that there was nothing worth remarking upon
in the claim of the USSR against Japan. Putting all the above facts together, it is
construed that the claim for those assets appropriated by the USSR is also included in
the claims that Japan renounced.”
“Under such circumstances, it is doubtful that the claim of the plaintiffs to the
effect that the Japanese POWs detained in the USSR in lieu of the defendant paid in
advance the cost of supplies for them.”
2. “Secondly, since the plaintiffs assert that they have the claim against the
defendant for the payment of the cost of supplies because they had paid the cost of
supplies by means of their labor wages, it is necessary to examine the positive law of
Japan upon which they base the claim for the payment of the cost of supplies of the
officers and soldiers detained by the belligerents outside Japan after the termination
of war. . . . At the time, in August 1945, the laws and rules relative to supplies
applicable to the officers of the Japanese Army were the Ordinance of Allowance to
the Army of the Greater Asian War (Dai-Toa Sensoh Rikugun Kyuyo-Rei)
promulgated as the Imperial Ordinance No. 625 on 28 July 1943, and the Rules on
Ordinance of Allowance to the Army of the Greater Asian War (Dai-Toa Sensoh
Rikugun Kyuyo-Rei Saisoku) promulgated as the Circular Notice of the Japanese
Army No. 67 on 20 August 1943.”
“Incidentally, although the status of the officers and soldiers of the Japanese
armed forces was to be extinguished automatically following the unconditional
surrender of Japan and the dissolution of its armed forces, it was still needful for the
government to preserve their status as officers and soldiers solely for the purpose of
assisting their dependents until their actual repatriation. On 15 May 1949, therefore,
Notice No. 907, on “The Wages for Personnel Abroad” was issued by the vice
director of the First Demobilization Bureau, . . . but it included no provisions on the
supplies of clothes, foods, etc.”
“On 17 May 1947, the Government of Japan issued Order No. 52 . . ., whereby
not yet repatriated personnel of the former armed forces were deprived of their status
and granted the status of “non-repatriates” instead. The Law on the Payments to the
Non-Repatriates promulgated as Law No. 182, on 15 December of that same year,
provided for only three types of payments; wages, dependents’ allowance, and return
expenses (Article 2).”
“Such being the case, and as the Ordinance of Allowance to the Army became
inapplicable by virtue of Notice No. 907, issued by the vice director of the First
Demobilization Bureau, on 15 May 1949, substituting for the aforementioned
governmental Order No. 52, it can be found that there was no provision in positive
law to make it an obligation of the defendant to supply food and clothes for the
Japanese personnel detained in the USSR.”
“Yet as the above-mentioned Notice entered into force on 1 April 1946, there
might remain the question of application to the supplies of the Order on Wages of the
Army in the Greater Asian War before such date.”
“However, the lack of a provision in the Order for supplying clothes and food for
those personnel detained by the other belligerent Powers as POWs, should not be
interpreted as making the provision of supplies of clothes and food for the personnel
in field directly applicable to those POWs. It is interpreted instead that the supplies
to such personnel should be arranged with the application of the rules of international
law on the treatment of POWs and in accordance with the consultations among the
belligerent States.”
3. “For the reasons stated above, and without need to examine the rest of their
assertions, the claims of the plaintiffs on the payment of the cost of supplies should
be judged as ungrounded.”
“Conclusion
The Court finds that all the claims of the plaintiffs are without reason, and,
therefore, dismisses them as declared in the operative pan of this decision, allocating
the cost of litigation in accordance with Articles 89 and 93, paragraph 1, of the Code
of Civil Procedures.”
XI.
Judges:
Yakao Inamori (presiding)
Tetsunobu Kinoshita
Hiroshi Iizuka