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Friday, Nov. 2, 2001

U.S. courts move forward on POW claims


Staff writer

A ruling by a California judge late last month is a major defeat for U.S. State Department and Japanese government officials who argued that former American POW slave laborers cannot sue Japanese firms for compensation because of the 1951 Peace Treaty, and a major victory for the ex-POWs and their growing number of Congressional supporters.

In his Oct. 19 decision, Judge William F. McDonald of the California Superior Court in Orange County ruled, in three slave labor suits, two against Mitsubishi and one against Mitsui, that it is the courts, not the executive branch, that determine the meaning or applicability of the treaty; that the court has a right to hear the POWs claims; and that there are legitimate factual issues concerning whether or not the 1951 treaty is applicable to the issue.

The ruling threw cold water on claims by the U.S. State Department, the Pentagon, the Japanese government and Japanese firms that repatriations were settled in 1951, and comes a year after both the State Department and Japan thought that they had scored a major victory.

In September 2000, a U.S. federal court judge dismissed the POW suits, ruling in favor of Japanese firms. The judge ruled that Article 14 (b) of the treaty, which waves repatriations claims against Japan, also includes individual claims.

But ex-POW support groups argued that Article 26 of the treaty is the relevant section. This article obliges Japan to give the same advantages to all other nations if, after the San Francisco Treaty, better terms are reached with individual nations.

The ex-POWs point out that Japan made payments to Britain, Holland, and Switzerland after the treaty, money that was used by those governments to compensate POWs. There has been much debate over the exact, legal form of those payments, and whether or not they represent compensation as referred to in Article 26 or are something else.

But while legal experts wrestle with that question, the argument that the treaty forbids individual claims was under serious political attack before the recent California Superior Court decision added legal pressure as well.

* In December 2000, in the face of growing public support for the ex-POW's, State Department officials quietly approached the Japanese embassy in Washington, suggesting that while publicly the State Department would back Japan, Japanese firms might want to think about their moral responsibilities toward the POWs.

* In March of this year, California Congressman Dana Rohrabacher introduced a bill in Congress that, in practice, would instruct the courts to reject arguments that all repatriation claims were settled in the 1951 treaty. The bill is currently in several committees and enjoys broad, bipartisan support.

* In July and August, the House of Representatives and the Senate separately passed amendments to the Commerce, State, and Justice Department Appropriations bill, which forbids all three departments from using their budgets to fight ex-POW lawsuits.

* In early September, just before the 50th anniversary of the peace treaty, a lawsuit seeking $1 trillion in repatriations from the Japanese government was filed in the U.S. District Court in Chicago. While dismissed by its critics as a publicity stunt, the suit uses declassified documents to argue that former Japanese Prime Minister Shigeru Yoshida told the Dutch government that the 1951 treaty did not mean the Allied powers were forfeiting the right of their citizens to sue Japan for wartime damages.

For the U.S. State Department, Pentagon, and other U.S. and Japanese officials, the reasons for opposing the lawsuits are not just treaty related. Historians, as well as the ex-POWs, are aware that the suits will bring to light classified U.S. government files that are sure to detail politically embarrassing agreements reached a half century ago between a defeated Japan that had no money and a U.S. government that wanted a friendly, stable, noncommunist partner in Asia in which to station its military.

Thus, while publicly backing the Japanese side, many in the State Department are advising Japan, privately and with growing urgency, to set up some sort of voluntary fund for the ex-POWs as a way to settle the issue and prevent what they fear will be chilled U.S.-Japan relations if the ex-POWs actually get to court.

No response to that idea has been heard from Japan so far. But many in Washington and Tokyo who just a few years ago dismissed the ex-POW lawsuits as a scam by a few greedy lawyers and publicity-seeking politicians have suddenly found themselves losing the battle to a large, highly-motived and well-funded group of people in the halls of Congress, the U.S. media, and now, as the ruling last month shows, in the court of law. As a result, they grow more anxious for a quick, out-of-court settlement.



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