The Asia-Pacific Journal | Japan Focus Volume 8 | Issue 32 | Number 5 | Article ID 3399 | Aug 09, 2010

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Rejected by All Plaintiffs: Failure of the Nishimatsu-Shinanogawa “Settlement” with Chinese Forced Laborers inWartime Japan　　全被告が拒否−−戦時日本の中国人強制労働者との西松・信濃川「調停」の不成功 •Chinese original available

Kang Jian

Rejected by All Plaintiffs: Failure ofthe Nishimatsu-Shinanogawa"Settlement" with Chinese ForcedLaborers in Wartime Japan

Kang Jian [ 1 ] with an Introduction byWilliam Underwood

This is Part One of a two-part series. Part Twoi s a v a i l a b l e h e r e(https://apjjf .org/-Ivy-Lee/3400).

A C h i n e s e v e r s i o n(https://apjjf.org/data/KangRejected_By_All_PlaintiffsChinese.pdf) of this article is alsoavailable.

Introduction

Japanese lawyers and activists supportingcompensation lawsuits for Chinese forced laborin wartime Japan once called Chinese attorneyK a n g J i a n t h e “ w i n d o w . ” T h e t e r macknowledged Kang’s pivotal role incoordinating between plaintiffs typicallylocated in the Chinese countryside andJapanese legal teams pressing claims on theirbehalf in a dozen courtrooms across Japan overthe past decade.

However, the close cooperation between Kangand the Japanese Lawyers Group for ChineseWar Victims' Compensation Claims broke downin April 2010, at least temporarily, followingthe out-of-court compensation agreement byNishimatsu Construction Co. with forced

laborers from its Shinanogawa worksite inNiigata. Late in the process of hammering outthe settlement fund worth 128 million yen(about $1.28 million), the five plaintiffs’Japanese lawyers began negotiating withNishimatsu on behalf of the larger group ofShinanogawa victims who had not participatedin litigation. Flanked by Kang, these fiveplaintiffs rejected the Nishimatsu pact at apress conference in Beijing the day after it wasfinalized in Tokyo.

Attorney Kang in the article below severelycriticizes the twin pillars of the Nishimatsu-Shinanogawa accord: the Japan SupremeCourt’s ruling in 2007 that the 1972 treatybetween Japan and China extinguished theright of Chinese citizens to seek war-relateddamages, and Nishimatsu’s insistence that itbears no legal liability for wartime forced labor.The article also suggests deeper questionsabout the justice of group settlements forhistorical wrongdoing that include symboliccompensation to victims who have not agreedwith settlement terms in advance.

Kang raised similar objections in a previousA s i a - P a c i f i c J o u r n a l a r t i c l e(https://apjjf.org/-Kang-Jian/3256) aboutNishimatsu’s first voluntary settlement lastOctober with Chinese laborers from its Yasunoworksite in Hiroshima, following one of the fewlawsuits in which neither Kang nor the mainJapanese lawyers group was involved. (SeeRedress Crossroads in Japan: Decisive Phase inCampaigns to Compensate Korean and Chinese

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W a r t i m e F o r c e d L a b o r e r s(http://www.japanfocus.org/-William-Underwood/3387) for recent developments involvingforced labor redress for Chinese, Koreans andAllied POWs.)

The reparations claim for Chinese forcedlaborers remains particularly compelling andpotentially resolvable. Many victims werefarmers abducted from their fields by Japanesesoldiers in the final two years of the war, andthen taken to Japan for harsh labor atcorporate-owned worksites with fatality rates ofup to 50 percent. There were 38,935 workersaccording to detailed records that weresecretly produced by the Japanese governmentin 1946, and then suppressed or destroyedonce the very real threat of widespread warcrimes prosecutions had blown over. The 35companies involved received postwarindemnification payments from the state forlosses supposedly incurred, even though wageswere almost never paid during the war. Lessthan 1,000 former workers are believed to bealive today and their identities (if not in allcases exact locations) are well known.

Most significantly, Japanese courts in recentyears have established the forcible, illegalnature of the Chinese labor program beyondany doubt, and ruled that it was jointly carriedout by the Japanese state and industrial sector.Prior to the “death-knell” decision by the JapanSupreme Court in 2007, lower courts usuallylet the government and corporations off thelegal hook on the respective grounds of stateimmunity and time limits for filing claims. Yeteven in rejecting lawsuits Japanese judges onmultiple occasions recommended that non-judicial avenues of redress be explored, whilefour actual courtroom victories infused Chineseforced labor redress efforts with a rare sense oflegal momentum.

The Tokyo District Court in July 2001 orderedthe state to pay the family of Liu Lianren forthe 13 years he spent in hiding after he

escaped from a Hokkaido mine just before thewar ended. The Fukuoka District Court in April2002 described Mitsui & Co.’s conduct as “evil”and ordered the company to compensateplaintiffs. The Niigata District Court in March2004 found both the state and the transportcompany Rinko Co. liable for damages. TheHiroshima High Court in July 2004 orderedNishimatsu to compensate plaintiffs from theYasuno site.

The last was the ruling overturned by theSupreme Court on treaty-based grounds,ensuring that neither the Japanese governmentnor the companies will ever be required byJapanese courts to pay damages to Chineseclaimants. It was a highly orthodox and largelyexpected decision by the top court, even if theclaims waiver language in Japan’s 1972 treatywith China was (for reasons related to Japan’s1952 treaty with Taiwan) more ambiguous thanthat found in treaties with the Allied nations in1951 or with South Korea in 1965.

Basically all of the myriad legal claims againstJapan arising from war and colonialism havenow been dismissed by the top courts in Japanand/or claimants’ own countries, reflecting thenation-centric interpretations of internationallaw that currently prevail. This means that warredress demands have per force moved into thepolitical, economic and moral arenas, withlegislative action having emerged within anongoing global trend as the most effectivemeans of repairing past injustices.

In the case of Chinese forced labor, the bestway forward might be for the generallyambivalent Chinese government to bring morepressure to bear on the Japanese governmentand the corporate users of forced labor that arebecoming increasingly dependent on theChinese market. If China were to permitcompensation lawsuits to proceed in Chinesecourts, for example, the public relations falloutwould probably send major companies likeMitsubishi Materials to the negotiation table

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even i f the suits were never actual lyadjudicated. Mitsubishi is today a prime targetof attorneys and citizens groups in both Chinaand Japan, as the firm has indicated itswillingness to settle Chinese claims on thecondition the Japanese government participatesin the process.

Mitsubishi Heavy Industries, meanwhile,announced in July 2010 that it would opencompensation talks with Korean womendeceived as teenagers into working without payat its wartime aircraft factory in Nagoya. Thatsurprise move in the teishintai (or “volunteercorps”) case came only after many years ofgrassroots activism, first by Japanese and laterby Koreans, as well as direct involvement bySeoul authorities in the form of the TruthCommission on Forced Mobilization UnderJapanese Imperialism. Mitsubishi’s resistanceto addressing the teishintai matter was finallybroken by a petition signed by more than130,000 South Korean citizens and 100members of the National Assembly – along witha credible threat of organized consumerboycotts.

Japanese attorney Takahashi Toru has told TheAsia-Pacific Journal that the Lawyers Group forChinese War Victims' Compensation Claimsplans to meet soon with the 20 or so still-extantcompanies that used Chinese forced labor, toencourage them to follow the Nishimatsuexample. Two firms, Hazama Co. and TekkenConstruction Co., were co-defendants withNishimatsu (and the Japanese state) in theShinanogawa lawsuit, but have taken no stepstoward reconciliation. It is hoped that a criticalmass of these Japanese companies willeventually recognize that resolution of theChinese forced labor issue is in their corporateself-interest, and that they will in turn helppersuade the Japanese government to set up acomprehensive state-industry compensationmechanism just as Germany did in 2000.

Prior to assuming the reins of power one year

ago, the Democratic Party of Japan hadestablished a party subcommittee foraddressing the Chinese forced labor problem,along with subcommittees for issues involvingAllied POWs and the repatriation of war-relatedremains. The DPJ also campaigned onproactively settling historical matters that hadfestered during a half-century of rule by theLiberal Democratic Party. But meaningfullegislative or administrative action on forcedlabor by Japan will not occur unless the DPJ,which fared poorly in July’s national elections,can consolidate its political position, or in theabsence of significant domestic and/orinternational pressure on the issue.

Given both the Japan Supreme Court ruling andthe German precedent, future Japanesemeasures concerning Chinese forced labor, atthe state or corporate level, will almost surelybe couched in moral and humanitarian—notlegal—terms. Upcoming agreements likely willbe explicitly premised on the April 2007 rulingand a denial of legal liability by the Japaneseside, and it is the inclusion of these premises inthe Nishimatsu-Shinanogawa deal that is KangJian’s central objection in the article thatfollows. The reparations road ahead may,however, involve both Japanese governmentcreation of a framework for settlement andcorporate payments to victims.

Kang’s voice is that of a ground-floorparticipant and major figure in a transnationalmovement and legal process now approachinga decisive stage. Her important role of manyyears in fighting for justice for Chinese forcedlaborers, and her influential position in Chineselegal circles, entitle her views to a respectfulhearing. –William Underwood

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On April 26, 2010, Japan's NishimatsuConstruction Corporation (hereafter calledNishimatsu) and descendants of a number ofChinese victims of wartime forced labor at the

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Shinanogawa worksite in Japan signed an out-of-court settlement agreement. Some mediaphrased this action as "Nishimatsu arrived at asettlement with the Chinese forced laborerplaintiffs", or "Nishimatsu will pay damages to183 Chinese victims of forced labor".

The truth is that all the plaintiffs of theNishimatsu-Shinanogawa forced labor lawsuitin Japan, who were confirmed by bothNishimatsu and the plaintiffs' Japaneseattorneys in June 2009 as the representativesto negotiate with the company, did not sign anysettlement agreement with Nishimatsu. Theroot cause for this are: (a) Nishimatsu insistedto state in the content of the Nishimatsu-Shinanogawa Settlement Agreement[2] that"Chinese people's right to claim had beenwaived", but did not allow the plaintiffs toexpress side by side in the SettlementAgreement that they could not accept thiswrong viewpoint; (b) In order to make clear itsunyielding position of not taking any legalliability, Nishimatsu deliberately uses the term"atonement money (償い金)" to ambiguouslyname the damages that they should have paidto the Chinese victims; and (c) Moreover,Nishimatsu unreasonably requires those whoaccept the "settlement" to bear hereafter theobligation of ensuring that the corporation willbe immune from any future liability from anyother parties for this case. This articlediscusses these and other shortcomings of theunacceptable "settlement" in detail.

The five plaintiffs in the Shinanogawa

lawsuit against Nishimatsu, along withheirs of two other victims, announce theiropposition to the compensation pact at aBeijing press conference on April 27.(photo courtesy of Kang Jian)

The position of rejecting the Nishimatsu-Shinanogawa Settlement Agreement by allplaintiffs is supported by many concernedindividuals and organizations including CanadaALPHA (Association for Learning andPreserving the History of WWII in Asia).[3]

1. Initiation of the settlement forNishimatsu-Shinanogawa forced laborerlawsuit

Han Yinglin (deceased on June 7, 2010), HouZhenhai (deceased), Guo Zhen (deceased), LiShu (deceased), and Li Xiang (deceased)[4] arefive of the victims of wartime forced labor whowere abducted to Nishimatsu's Shinanogawaworksite in Niigata Prefecture of Japan for hardlabor in 1944. At the Tokyo District Court onSeptember 18, 1997, they sued the Japanesegovernment, Nishimatsu, Hazama Co. andTekken Construction Co. for abduction andenslavement, demanding that the defendantsopenly apologize to the Chinese victims in bothChinese and Japanese media and pay eachplaintiff damages of 20 million yen.

On March 11, 2003, the Tokyo District Courtmade the judgment of the first trial. The Courtdid not verify the facts of perpetration anddismissed the claim of the plaintiffs on theground of statutory time limit.

The plaintiffs appealed immediately. On June16, 2006, the Tokyo High Court made thejudgment of the second trial. The court verifiedin detail the facts of victimization presented byeach of the plaintiffs and the tortuous actsjointly committed by the State of Japan and theJapanese corporations, in which they abductedand enslaved the Chinese victims of forcedlabor. The plaintiffs' claim, however, wasdismissed again on the ground of statutory time

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limit.

The plaintiffs then appealed to the SupremeCourt of Japan. On June 15, 2007, the SecondPetty Bench of the Supreme Court summarilydismissed the appeal of the plaintiffs withoutciting any legal grounds.

In 2009, senior officials of Nishimatsu wereinvestigated by Japanese authorities for illegalpolitical contributions and the seniormanagement was then reorganized. Inconsideration of the corporation's businessstrategy and other factors such as improvementof its public image, Nishimatsu expressed inMay 2009 its wish to resolve the historicalissue by settling out of court with the Chinesevictims of forced labor at its Shinanogawaworksite (as well as victims from the separateYasuno worksite). The Chinese victimsresponded positively to this. In June 2009, theauthor went to Tokyo in the capacity of agentfor the Chinese plaintiffs from Shinanogawaand, together with the Japanese lawyers whorepresented the Chinese plaintiffs, negotiatedwith Nishimatsu.

At that time, the Nishimatsu representativesindicated that they would handle this casefollowing the Hanaoka "settlement" model. Theauthor unambiguously expressed that theHanaoka "settlement" model should not beused because the Hanaoka "settlement" wascharacterized by the following features: theKajima Corporation that enslaved the Chineseforced labor victims at its Hanaoka worksiteevaded the facts of perpetration, evaded itsresponsibility, gave charitable "relief" to theChinese forced labor victims to terminate itslegal liability, and crowned the charitable relieffund with the laurel of "Friendship Fund". Inaddition, the Hanaoka Settlement Agreementcontains a provision that inappropriatelyrestricts the rights of any third party, includingthose who refuse to accept this "settlement", toclaim damages from Kajima, the perpetratingcorporation.

As the Nishimatsu-Shinanogawa settlementnegotiation stemmed from the lawsuit claimsfor damages by the plaintiffs, both partiesestablished the principle at the initial stage ofnegotiation that the plaintiffs in the litigationbe the representatives of the victims' sidethroughout the negotiation.

Chinese-language materials used to rallysupport for the strong redress claimstemming from Chinese forced labor. Theman at left worked at the NishimatsuYasuno site, while the man at right waspressed into unpaid service for Mitsui &Co. (photo courtesy of Kang Jian)

A few months later, when proposing thesettlement provisions, Nishimatsu insisted onincluding in the settlement agreement thewrong judgment made on April 27, 2007, by theSupreme Court of Japan. In that landmarkruling, the court held that the Chinese people'sright to claim for damages had been waived in1972, yet it also stated there is an expectationthat the Chinese plaintiffs be given appropriaterelief. Nishimatsu has taken this ruling as thepremise for making a settlement with theChinese victims of forced labor.

As representatives of the Chinese forced laborvictims of the Shinanogawa worksite at thenegotiation, all the plaintiffs made clear thatthe wrong conclusion derived from theunilateral interpretation of the China-JapanJoint Communique of 1972 by the SupremeCourt of Japan should not be written into theSettlement Agreement. In compromise and to

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allow the opposite positions of the two sides onthis issue to be expressed, the plaintiffsproposed that the Chinese victims' position ofnot accepting that "Chinese people's right toclaim had been waived" should also be writteninto the same provision of the SettlementAgreement. Another proposed option wasmoving this controversial content from theSettlement Agreement to the ConfirmationItems document. Nishimatsu rejected theplaintiffs' proposals categorically.

2. Nishimatsu's intention to insist that"Chinese people's right to claim had beenwaived" as the premise for settlement

The Chinese victims of Japan's war ofaggression against China brought over 20 legalclaims for damages, one after the other, toJapanese courts against the Japanesegovernment and corporations. The Japanesecourts that undertook the trial of these caseshad made many rulings already before April 27,2007, but none of these judgments ruled thatthe Chinese people's right to claim had beenwaived.

On April 27, 2007, the Supreme Court of Japanmade a ruling (hereafter called the 4/27 ruling)on the Nishimatsu-Yasuno forced labor case,deciding that the government of China, onsigning the China-Japan Joint Communique,had waived fully the right to claim, includingthat of the Chinese nationals.

On the same day that the Supreme Court ofJapan made the ruling, the spokesperson of theChinese Ministry of Foreign Affairs issued afirmly worded statement expressing explicitlythat "the interpretation of the China-Japan JointCommunique made by the Supreme Court ofJapan is illegal and invalid."

After the 4/27 ruling was made, some Chineseand Japanese scholars of law and historystudied and discussed the court ruling. Theyarrived at a common understanding that it is anobvious violation of the basic principle of

international laws for the Supreme Court ofJapan to use the San Francisco Peace Treaty, towhich China was not a party, as its frameworkto unilaterally interpret the China-Japan JointCommunique and to rule that "Chinese people'sright to claim for damages from Japan had beenwaived". Thus, the court's conclusion that"Chinese people's right to claim for damageshad been waived" cannot be established. Howto correct this wrong ruling will become amajor issue from now on for both China andJapan in relation to finding ways to trulyresolve the wartime legacy.

In June 2007, when the Supreme Court of Japandismissed the appeal of the plaintiffs of theNishimatsu-Shinanogawa forced labor case, itdid not give any reason and only simply statedin a few lines that the appeal was dismissed.The verdict did not mention anything at allabout "Chinese people's right to claim had beenwaived". Hence, the ruling of the second trial atthe Tokyo High Court on the Nishimatsu-Shinanogawa forced labor case came intoeffect. In its verdict, the Tokyo High Courtaffirmed in detail the facts about the sufferingsof Han Yinglin and the other four plaintiffs,affirmed also the illegal acts committed againstthe Chinese forced labor victims by theJapanese government, Nishimatsu and otherperpetrating corporations. This court dismissedthe victims' claim on the ground of exceedingthe time limitations and the repose period forfiling suit, but it did not rule that the Chinesepeople's right to claim had been waived. TheJapanese lawyers who represent the plaintiffsalso agree with the above analysis of the courseof events.

If Nishimatsu really has the sincerity to make asettlement with the Chinese victims of forcedlabor, and if the company must cite a Japanesecourt ruling as a preamble of the SettlementAgreement, then the logical choice should bethe verdict of the second trial made by theTokyo High Court. Nishimatsu, however,insisted on quoting the 4/27 ruling, which was

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not specifically made for the Shinanogawacase. The reason for this choice is self-explanatory. It is precisely because this 4/27ruling decided that the "Chinese people's rightto claim damages from Japan had beenwaived".

The Yasuno Settlement Agreement signed onOctober 23, 2009, between Nishimatsu andsome Chinese forced labor victims and theirdescendants of the Yasuno worksite alsoincluded similar content asserting that"Chinese people's right to claim damages hadbeen waived".

Nishimatsu insisted to insert also in theShinanogawa Settlement Agreement the 4/27ruling. Its intention is to forcibly establish a"settlement" model on the premise that"Chinese people's right to claim damages hadbeen waived". This "settlement" model is tohelp the Japanese side to evade legal liabilitiesregarding their serious violations of humanrights and international laws.

This "settlement" model will also produceanother effect: Although various spokespersonsof the Chinese Ministry of Foreign Affairsrepeatedly denounced the wrong rulings madeby the different levels of Japanese courts on orafter April 27, 2007, the fact that there areChinese victims who accept settlementagreements based on this model implies thatthey accept the wrong rulings regarding"Chinese people's right to claim damages hadbeen waived". The construction of this realitywill inevitably have adverse impacts on theresolution of war legacy issues.

3. Plaintiffs being involuntarily andforc ib l y inc luded as par t o f the"Settlement" defined by Nishimatsu

Ignoring the principle of reciprocity,Nishimatsu insisted on writing into theSettlement Agreement that "Chinese people'sright to claim had been waived" and objected tothe inclusion of the plaintiffs' position of not

accepting the 4/27 ruling in the same provision.In the spirit of compromise, the plaintiffs thenproposed moving all such contents to theConfirmation Items document, but even thisrightful demand was rejected by Nishimatsu.According to the Japanese lawyers of theplaintiffs, the President of Nishimatsu hadexplicitly stated that not a single word of theSettlement Agreement (the version finalized inDecember 2009) would be changed, and thatthe lawyers could write whatever they liked inthe Confirmation Items because after all thePresident would not sign on the ConfirmationItems document. This confession of thePresident indicates that Nishimatsu has nointention to truly reflect on the facts ofperpetration or to sincerely apologize. It alsoshows that Nishimatsu knows the difference interms of legal status between the SettlementAgreement and the Confirmation Itemsdocument.[5]

On March 22, 2010, all the plaintiffs who hadbeen confirmed as the representative body atthe beginning of the negotiation withNishimatsu, issued a statement rejecting theinsincere Settlement Agreement offered byNishimatsu. At the same time, the plaintiffs'statement expressed explicitly,

"If your corporation signs thisSettlement Agreement with otherChinese forced labor victims ort h e i r d e s c e n d a n t s o f t h eNishimatsu-Shinanogawa worksite,then it should state clearly in theSettlement Agreement that theproposed "solution" for the forcedlaborers at the Shinanogawaworksite does not include us interms of the number of victims tobe paid and the amount of moneyinvolved, and also deduct the summeant for us from the total amountof the so-called ‘atonement money';otherwise we shall take it as a new

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violation of our legal rights andinterests, and will hold yourcorporation accountable for suchdeed."

Nevertheless, when Nishimatsu disclosedinformation about the "settlement" to theJapanese media on April 17, 2010, it continuedto include the plaintiffs as part of its"settlement" arrangements.

As the agent of the Chinese plaintiffs, theauthor therefore issued a protest letter toNishimatsu on April 19, 2010, but thecorporation has not made any response. In theSettlement Agreement signed on April 26,2010, Nishimatsu continued to include theplaintiffs who had already openly stated theirrejection of this Settlement Agreement in its"settlement" arrangements. While Nishimatsuhas yet to resolve its wartime forced laborissue, it violates de facto the human rights ofthe Chinese forced labor victims once again.

Chinese news coverage of the Nishimatsu-Shinanogawa settlement and its rejectionby plaintiffs involved in the lengthyl i t i g a t i o n . ( C C T V v i d e o(http://www.youtube.com/watch?v=uFQR6eoiB1c) available)

Nishimatsu has pushed aggressively thisproblematic "settlement" model, deliberatelycreating a false impression that the legacy

issue of abducting and enslaving Chineseforced labor victims has achieved a "completeresolution". The purpose is to buy out its legalliability for severe human rights violation witha small sum of money. Once some Chinesevict ims accept and s ign on to such a"settlement", despite the fact that thesesignatories do not have authorization from allother victims, Nishimatsu will regard "Chinesepeople's right to claim had been waived" to bean established fact and a "complete resolution"of the issue to be achieved. This is the effect ofsuch a "settlement" model. From a legal pointof view, unless one is authorized, one has noauthority to sign on behalf of others. However,this principle is violated in the Nishimatsu-Shinanogawa "settlement" as the victims whohave explicitly rejected the SettlementAgreement and those who have not yet beenlocated are all involuntarily included in thebinding provisions of this SettlementAgreement. Their claim issues are alsounilaterally regarded as resolved within the"complete resolution". Such a deed is inobvious violation of law and blatantlydisrespects the human rights of these victims.

Nishimatsu dodges with ease its legal liabilityand historical responsibility of severe humanrights violation by paying a petty sum of lessthan 50,000 Chinese Yuan Renminbi to eachvictim of the Shinanogawa worksite or theirheirs. The Chinese victims' side, on the otherhand, pays a heavy price of losing the right tolegal recourse henceforth as stipulated inClause 6-1 of the Nishimatsu-ShinanogawaSettlement Agreement, that "... the victims'side gives up all the rights to claim from theappellant (i.e. Nishimatsu) in Japan as well asin other countries and regions".

4. The "relief (救濟)" in the SettlementAgreement is not relief under legal rights

The preamble of the Nishimatsu-ShinanogawaSettlement Agreement cites the 4/27 ruling ofthe Supreme Court of Japan. The Court ruled

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that Chinese people's legal right to claim hadbeen waived. The Court, at the same time,opined, "It is expected that the concernedparties, including the appellant ( i .e.Nishimatsu), will make an effort to providerelief for the losses suffered by the victims inthis case".

According to the original text of the 4/27ruling, the term "relief" mentioned in theverdict is obviously NOT implying relief in thejudicial sense. In the legal domain, "judicialrelief" refers to relief as the right of thelitigant. For the term "relief (救濟)" outside thejudicial domain, it refers to "helping people inwant or living in a disaster area with money ormaterials", according to the Modern ChineseDictionary.

The 4/27 ruling of the Supreme Court of Japanalready concluded clearly that legally theChinese people had lost their right to claim,implying that they had thus also lost the rightto judicial relief in court. Hence, the type of"relief", as opined by the Court, fromNishimatsu and other concerned parties for theChinese forced labor victims certainly does notrefer to judicial relief. Thus, the meaning of theterm "relief (救濟)" used in the SettlementAgreement can only be relief of a charitablenature.

5. "Atonement Money (償い金)" is not"Damages (賠償金)"

"Atonement money" (償い金) is not a legalterm. In Japanese, the term is of daily usagewith a broad connotation, having emotionalh u e s a n d t h e m e a n i n g o f r e p a y i n gindebtedness.

"Damages" (賠償金) is a legal term with clearconnotation, meaning to assume liability bymaking payment to the victim. This term inboth Japanese kanji (賠償金) and traditionalChinese characters (賠償金) is identical and hasessentially the same meaning.

In 1995, under pressure from differentquarters, the government of Japan set up theAsian Women's Fund to handle the issue of"comfort women" forced into sexual servitudeby the Japanese military.

Based on the Japanese government's positionthat the issue of "comfort women" was alreadyresolved in the peace treaties made by Japanwith the victims' countries, the money paid tothe victims should not be termed as damages orcompensation. Hence, the term "consolationmoney (慰問金)" was used in the tentative planreleased to the public through the media inAugust 1994. This term was repudiated byvarious stakeholders. In order to uphold itsposition of not assuming the liability, theJapanese government sought out another term,"atonement money (償い金)", and used it toreplace "consolation money". Thereafter, theterm "atonement money" appeared many timesin the planning and promotion documents ofthe Asian Women's Fund issued by the then-Chief Cabinet Secretary and other toppoliticians.

In the Asian Women's Fund, the Japanesegovernment ambiguously shifted its liabilityf rom pay ing damages to g i v ing ou t"humanitarian" aid, including medicalassistance, to the victims. Such a shift reflectedthe charitable relief hue of the Fund. The term"atonement money", according to the goals ofthe Asian Women's Fund, became thesubstitute term for "aid", and was usedfrequently in the official documents of theFund. It was exactly due to the insincerity ofthe Japanese government and its unwillingnessto undertake liability that the Asian Women'sFund was boycotted and criticized by theoverwhelming majority of the victims andconcerned organizations in Asia. At present,the Fund has concluded its payouts and relatedactivities.

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Letter sent by Chinese plaintiffs toNishimatsu and the plaintiffs' Japaneselawyers last March, opposing theShinanogawa settlement that wasconcluded the following month with othervictims and descendants. (photo courtesyof Kang Jian)

If Nishimatsu officials had the sincerity to makesettlement, to offer apology and pay damagesto the Chinese forced labor victims, why dothey not use the term "damages (賠償金)" thathas the same written characters in bothChinese and Japanese, and has the same andunambiguous connotat ion in the twolanguages?

The term "atonement money" in theNishimatsu-Shinanogawa SettlementAgreement echoes the purpose of citing the4/27 ruling in the preamble of this Agreement.The purpose of insisting that the "Chinesepeople's right to claim damages had beenwaived" is to shirk the legal liability. Hence, inprovisions regarding payment to the Chinesevictims, the Agreement vigorously avoidedusing the term "damages", a proper legal termthat implies undertaking liability.

Therefore, the term "atonement money (償い金)" viewed in the context of its intentionalusage in the Asian Women's Fund and in theNishimatsu-Shinanogawa SettlementAgreement is, without doubt, not "damages" asclaimed by some supporters of this Settlement

Agreement.

It is also worth mentioning that the legally validversion of the Settlement Agreement confirmedin the Tokyo Summary Court is the Japaneseversion, not the translated Chinese one.Therefore, in the Chinese version as providedby the Japanese lawyers, the term "atonementmoney (償い金)" being translated as "damages(賠償金)" is misleading to Chinese readers.

6. Subsequent obligations for those whohave accepted the "settlement" and alsofor their agents

Clause 6-2 of the Nishimatsu-ShinanogawaSettlement Agreement stipulated that "theother party (i.e. the Chinese forced laborvictims and their descendants) and theiragents...., from now on have the responsibility,regardless of whether they have submitted therequired document as mentioned in Clause 5-7,to ensure that the appellant (i.e. Nishimatsu)would not have any burden whenever anyoneoutside the other party makes a damage claimagainst the appellant."

The implication of Clause 6-2 of the SettlementAgreement is that from now on, wheneveranybody makes a damage claim againstNishimatsu regarding its enslavement ofChinese forced laborers (even though theperson who makes the claim has not acceptedthis "settlement"), those who have acceptedthis "settlement" and their agents will have theresponsibility to come forward to resolve thisclaim issue, making sure that Nishimatsu willnot have any further burden. In plainlanguage, Nishimatsu has paid out a small sumof money to enlist some helping hands.

In this provision (i.e. Clause 6-2), reference ismade to Clause 5-7 which stipulates that theChina Human Rights Development Foundationhas the obligation to explain the purpose of this"settlement" to those who request payment ofthe "atonement money". Clause 5-7 also statesthat the Chinese victims who accept the

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"atonement money" have to sign two copies ofthe document acknowledging the purpose ofthe "settlement", and that one of the copies willbe submitted to Nishimatsu by the ChinaHuman Development Foundation.

7. Different Legal Status of the SettlementAgreement and the Confirmation ItemsDocument

Two documents arose from the Nishimatsu-Shinanogawa "settlement", the SettlementAgreement signed by both parties (i.e. thePresident of Nishimatsu and some non-plaintiffvictims' heirs) and the Confirmation Itemsdocument signed only by the lawyers ofNishimatsu and the Japanese lawyers, whowere authorized to sign by the non-plaintiffvictims and descendants - even as the fiveactual plaintiffs whom the Japanese lawyershad been representing refused to take part inthe agreements. Similar arrangement wasmade in the case of the Nishimatsu-Yasuno"settlement" on October 23, 2009.

Why are there two documents arising from one"settlement"? An analysis of the status and thelegal efficacy of the two documents isnecessary.

Firstly, in terms of process and format, theSettlement Agreement was signed byNishimatsu and some descendants of somevictim laborers, and was also verified by theTokyo Summary Court. The ConfirmationItems, on the other hand, was signed only bythe Japanese lawyers commissioned by therespective parties, but was not verified by theTokyo Summary Court.

In Beijing last April at the office ofattorney Kang Jian, far left, plaintiffs andfamily members in the Chinese forcedlabor lawsuit against Nishimatsu discusstheir rejection of the Shinanogawa pact.(photo courtesy of Kang Jian)

Hence, the Settlement Agreement is a judicialdocument and the Confirmation Itemsdocument is not.

Secondly , in terms o f contents , theConfirmation Items list out the two parties'opposite positions and their differentunderstandings concerning some criticalcontents of the Settlement Agreement.

However, some parts of the statements made inthe Confirmation Items, in fact, exceed thestipulated meaning of the concerned provisionsin the Settlement Agreement. Moreover, in theSettlement Agreement that was verified by theTokyo Summary Court, there is no mentionabout the status of the Confirmation Itemsdocument in this "settlement" nor even aboutits existence. Therefore, the legal efficacy ofthe Confirmation Items is highly questionable.Even if both parties may ratify afterwards whattheir Japanese lawyers have done regarding theConfirmation Items, since the ConfirmationItems document was not verified in the court,its legal status is not comparable to theSettlement Agreement.

Obviously, in terms of format, the Settlement

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Agreement is in a superior position and theConfirmation Items document, which is in aninferior position, does not have the legalefficacy that supersedes the SettlementAgreement.

8. Conclusion

As agent of the Chinese plaintiffs, the authorparticipated in many compensation lawsuitsbrought to the courts of Japan by victims offorced labor and "comfort women". In thecourse of these litigations of more than tenyears, having been in contact with hundreds ofvictims and learned from their painful stories, Ifeel strongly the evils of the war that causedextremely serious pain and suffering to theChinese. Until now, the government of Japanand the concerned Japanese corporations havenot yet undertaken their liability towards thevictims. As an attorney, I feel obliged to helpthe victims to realize their fundamental desiresfor defending their dignity and human rights.

In the process of negotiation with Nishimatsufor almost a whole year, the Shinanogawalawsuit plaintiffs made huge efforts inattempting to reach a sincere settlement whileupholding their rightful position. Together withthe author, they gave frank opinions, via theirJapanese lawyers, on the proposed settlementterms to Nishimatsu. For example, in the draftof the Shinanogawa Settlement Agreement,Nishimatsu used similar wordings as in theYasuno Settlement Agreement to acknowledgeits "historical responsibility". However, withoutputting this in the context of Nishimatsu's actsof enslaving the victimized Chinese laborers,such acknowledgment becomes vague andempty.

With input from the plaintiffs and the author,Nishimatsu agreed to specify in Clause 1 of theSettlement Agreement the time when theviolations occurred, i.e. "during World War II",and to replace the term "labor" with "forcedlabor". For another example, the plaintiffs andthe author believed the name of the fund for

settlement should reflect, to a certain extent,the gravity and liability of the serious humanrights violations committed by Nishimatsu. However, Nishimatsu at first proposed to nameit as "Peace and Friendship Fund", the samename used in the Yasuno "settlement". We didnot agree to follow the Yasuno "settlement" inhaving the term "friendship" in the name of thefund. Instead, we proposed two options: (1)"Historical Responsibility Fund" or (2) "PeaceFund". Eventually Nishimatsu accepted namingthe fund as "Peace Fund".

In the Nishimatsu-Shinanogawa SettlementAgreement, there are words like "apology" and"deep and profound retrospection". As GuanJianqiang, Professor of International Law atEast China University of Political Science andLaw, pointed out in his March 2010 article,"Suggestions Made Before the Finalization ofthe Shinanogawa Settlement":

"Although the apology of the Japanesecorporation is stated in the Agreement, it lacksan explanation of why the Japanese corporationapologizes. In other words, without adding inthe apology provision statements like: ‘thecorporation enslaved the victims and obtainedbenefits from doing so...', any apology made tothe victims is really confusing in logic."[6]

Around the time of the Nishimatsu Yasuno andNishimatsu Shinanogawa Settlements, thesupporters of those "settlements" pointed outthat the surviving Chinese victims were gettingsenior in age and it would be of comfort tosurviving victims if they could receive somemonetary "compensation" while still alive.

However, the author feels these supporters areconfused about a principle: that the violationsperpetrated by the concerned Japanesecorporations have caused serious andpermanent harm to the bodies and minds of thevictims. So unquestionably the perpetratorsowe the responsibility to pay damages to thevictims. Yet if their reasoning becomes that ofonly providing some monetary assistance for

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the victims, they can realize this simply byfund-raising from the public. So it is wrong touse such reasoning to give up the rightfuldemand for damages from the perpetratingcorporations. Monetary assistance and fulfillingresponsibility to pay damages are twoapproaches with two distinct and differentimplications. These two approaches should notbe confused, otherwise the perpetrators caneasily evade their liability.

Attorney Kang Jian, far right, at theForeign Correspondents' Club of Japan in2007. To the left of Kang is Thekla Lit ofthe activist group Canada ALPHA. To theleft of Lit is a survivor of Chinese forcedlabor in Japan. (photo courtesy of KangJian)

Upon learning that the Nishimatsu-Shinanogawa plaintiffs rejected publicly theinsincere "settlement" agreement, concernedChinese people, including overseas Chinese,are deeply touched. Despite their own not-so-well-off financial situations, these survivingvictims or their heirs have stood their groundto defend human rights, their own dignity, andChina's national dignity. To show support andrespect for these plaintiffs, some concernedChinese individuals and groups came forwardto offer financial assistance. Such act is arealization of the universal desire to uphold

human rights, to offer mutual respect andsupport in a united struggle against injustice.This generous act of supporting struggleagainst injustice is by nature totally differentfrom Nishimatsu's offer of charitable relief,cloaked under the name of "atonementmoney". Such generosity from the broadercommunity also proves that it is not impossibleto solicit public donations to financially assistthe victims in their struggle to demanddamages from the perpetrators.

There are those who feel the amount granted toeach Nazi slave laborer under the GermanFoundation "Remembrance, Responsibility andFuture" is somewhat lower than what wasoffered by Nishimatsu's settlement funds, sothe fact that the former fund was praised whilethe latter was criticized appears to be unfair tothe Japanese side.

The author would like to point out that theabove opinion holders might have overlookedthe legislations and the series of actionspostwar Germany has been undertaking, whichreflect Germany's resolve to face history and todeal with its war responsibilities squarely. Inthese aspects, Germany is far ahead of Japan,as agreed by the international community. Thepr imary concern in th is Nishimatsu"settlement" is its premise-that Nishimatsuevades its liability and offers "atonementmoney" that is tinted with hues of charity. Thusthe Nishimatsu "settlement" fund cannot becompared to the Remembrance, Responsibilityand Future Foundation of Germany.

The Japanese lawyers representing the Chineseforced labor plaintiffs in nearly all the damageclaim lawsuits suggested setting up afoundation for comprehensively settling allcompensation issues regarding Chinese forcedlabor. As the Chinese lawyer involved in theShinanogawa lawsuit and numerous othercompensation lawsuits brought to the courts ofJapan by victims of forced labor, the author andvarious plaintiffs supported this suggestion. So

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on November 5, 2008, 103 plaintiffs of Chineseforced labor lawsuits officially sent to theJapanese Government and concernedcorporations the "Proposal on the CompleteResolution for the Issue of Abduction ofChinese People to Japan for Forced Laborduring Wartime".[7] The thrust of this proposalis to seek an out-of-court settlement and to setup a foundation to settle once and for all theissues around the severe human rightsviolations involved in the abduction of Chinesepeople to Japan for forced labor.

The author does not deny that out-of-courtsettlement is one of the means to resolve issuesof wartime legacy. While this proposedsettlement implies certain compromise, it doesnot sacrifice basic principle. Being the liableparties, the Japanese Government and theconcerned corporations should face thehistorical facts squarely, undertake the liability,apologize to the Chinese victims, and paycompensation-this is the uncompromisableprinciple within a settlement.

Undoubtedly both the Japanese governmentand the concerned corporations shouldsincerely apologize and compensate the forcedlabor victims for the brutal mistreatmentduring their captivity. However, Nishimatsuonly offered some money of charitable reliefhue to the victims. This perfunctory and casualapproach adopted by Nishimatsu to end itsliabilities for such grave human rightsviolations is not acceptable because it totallycontradicts the plaintiffs' original objective inthe damages claim.

Since the Nishimatsu "settlements" have somany problems, the Chinese forced labor victimplaintiffs in 13 compensation lawsuits in Japanassume the core member roles and have unitedwith other non-plaintiff forced labor victimsand their descendents to form the Federationof WWII Chinese Forced Laborers. Theobjective of the Federation is to defend thelegal rights of the nearly 40,000 Chinese

abducted to Japan for forced labor, and tosteadfastly demand that Japan and theconcerned corporations make sincere apologyand compensations.

In addit ion, the Internat ional LaborOrganization of the United Nations hasrepeatedly issued statements urging theJapanese government to offer apology andcompensation to victims of its forced labor andmilitary sexual slavery ("comfort women")during wartime.

Since 2007, the United States of America, theNetherlands, Canada, the European Union, andsome two dozen municipalities in Japan havepassed resolutions urging Japan to apologize toand compensate the "comfort women" victims. Recently I learned that the State of California,while calling for tenders for its High SpeedRailway construction, plans to include aprovision that the companies tendering will bechecked for its activities during WWII.

The above series of events prove that theinternational community has never given up itsconcern about the atrocities committed byJapan during WWII and Japan's war crimeresponsibi l i t ies. Such atrocit ies andresponsibilities will not be forgotten nordisappear with time: the only option for Japanis to sincerely apologize and compensate itsvictims.

Kang Jian is an attorney and Director of BeijingFang Yuan Law Firm, member of theConstitutional Human Rights Committee of theAll Chinese Lawyers Association (ACLA),member of the Disciplinary Committee ofBeijing Lawyers Association, Deputy Director ofthe ACLA Steering Committee of CompensationLitigations Against Japan for WWII ChineseVictims, and Executive Director of theInvestigation Committee on AtrocitiesCommitted Against Former Chinese "ComfortWomen". As agent for former Chinese "comfort

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women" and forced laborers, Kang Jianparticipated in a total of 13 damage claimlawsuits against the Japanese government andJapanese corporations in the courts of Tokyo,Fukuoka, Niigata, Gunma, Kyoto, Sapporo,Yamagata and elsewhere since 1995. She canbe contacted at kjlawyer@263.net.

William Underwood researches ongoingreparations movements for forced labor inwartime Japan. The author of numerous articleson the subject in The Asia-Pacific Journal, hewrote this introduction for The Journal. He is acoordinator for The Asia-Pacific Journal: JapanF o c u s a n d c a n b e r e a c h e d a tk y u s h u b i l l @ y a h o o . c o m(https://apjjf.org/mailto:kyushubill@yahoo.com)

This is the English translation of an updatedversion of Kang's article originally written inChinese. The updated article was prepared forThe Asia-Pacific Journal: Japan Focus. TheEnglish translation was provided by Thekla Lit,Co-chair of Canada ALPHA (Association forLearning and Preserving the History of WWII inAsia) (http://www.alpha-canada.org/). She canbe contacted at office@alpha-canada.org(https://apjjf.org/mailto:office@alpha-canada.org).

Recommended citation: Kang Jian, "Rejected byAll Plaintiffs: Failure of the Nishimatsu-Shinanogawa 'Settlement' with Chinese ForcedLaborers in Wartime Japan," The Asia-PacificJournal, 32-5-10, August 9, 2010.

ENDNOTES

[1] This article is a revised version of myprevious article entitled A "Settlement" Basedon the Premise of the Right to Claim BeingWaived - Comment on the Nishimatsu-Shinanogawa "Settlement" published in ChinaLegal Daily and People's Daily OnlinePeopl onMay 18, 2010.

[2] For the Nishimatsu-ShinanagawaSettlement Agreement refer to Appendix A(https://apjjf.org/data/AppA_NS_Agreement_26Apr2010_JP.pdf) for the Japanese version andA p p e n d i x B(https://apjjf.org/data/AppB_NS_Agreement_26Apr2010_CH.pdf) for the translated Chineseversion as provided by the Japanese lawyersrepresenting the Chinese victims.

[ 3 ] R e f e r t o A p p e n d i x E(https://apjjf.org/data/AppE_Canada__ALPHA__Statement_25Mar2010.pdf) - Statement issuedby Canada ALPHA on March 25, 2010.

[4] Besides Han Yinglin, the other 4 forcedlabor plaintiffs all passed away during thecourse of the litigation. Their descendants whoinherited their legal status as plaintiffs wereformally recognized by the Japan courts.

[5] For Confirmation Items refer to Appendix C(https://apjjf.org/data/AppC_Confirmation_Items_26Apr2010_JP.pdf) for the Japanese versiona n d A p p e n d i x D(https://apjjf.org/data/AppD_Confirmation_Items_26Apr2010_CH.pdf) for the translatedChinese version as provided by the Japaneselawyers representing the Chinese victims.

[6] For Prof. Guan Jianqiang's article refer toA p p e n d i x F(https://apjjf.org/data/AppF_Article_by_Guan_Jianqiang_9Mar2010.pdf).

[7] For the "Proposal on the CompleteResolution of the Issue of Abduction of theChinese People to Japan for Forced Laborduring Wartime" refer to Appendix G(https://apjjf.org/data/AppG_103_CFL_Proposal_5Nov2008.pdf).

APPENDICES

Appendix A: Nishimatsu-ShinanogawaS e t t l e m e n t A g r e e m e n t(https://apjjf.org/data/AppA_NS_Agreement_26Apr2010_JP.pdf)

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Appendix B (Chinese) : Nish imatsu -Shinanogawa Sett lement Agreement(translation as provided by Japanese legalt e a m )(https://apjjf.org/data/AppB_NS_Agreement_26Apr2010_CH.pdf)

Appendix C: Confirmation Items document(https://apjjf.org/data/AppC_Confirmation_Items_26Apr2010_JP.pdf)

Appendix D (Chinese): Confirmation Itemsdocument (translation as provided by Japanesel e g a l t e a m )(https://apjjf.org/data/AppD_Confirmation_Items_26Apr2010_CH.pdf)

Appendix E: Statement issued by CanadaALPHA on March 25, 2010(https://apjjf.org/data/AppE_Canada__ALPHA__

Statement_25Mar2010.pdf)

Appendix F (Chinese): "Suggestions MadeBefore the Finalization of the ShinanogawaSettlement", March 2010 article by GuanJianqiang, Professor of International Law atEast China University of Political Science andL a w(https://apjjf.org/data/AppF_Article_by_Guan_Jianqiang_9Mar2010.pdf)

Appendix G (Chinese): "Proposal on theComplete Resolution for the Issue of Abductionof Chinese People to Japan for Forced Laborduring Wartime", sent by 103 plaintiffs ofChinese forced labor lawsuits to the JapaneseGovernment and concerned corporations onN o v e m b e r 5 , 2 0 0 8(https://apjjf.org/data/AppG_103_CFL_Proposal_5Nov2008.pdf)