SECTION VI
Violation of Human Rights
Following
many years of attempted negotiations, it has remained
the consistent position of the Japanese government that any reparation to be paid to Canadian
prisoners of war was provided for in the Peace Treaty between Japan
and the Allied
Powers (including Canada)
executed on September 8th, 1951
and effective April 28th, 1952.
It
is our respectful position that the
aforesaid Peace Treaty
did not encompass the full
extent of the damages suffered by the Hong Kong Veterans under the conditions
of imprisonment imposed by the Japanese
government during World War II and more importantly, the Peace Treaty did not
address the question of
indemnification vis-a-vis the
gross violation of
human rights experienced by these Canadian prisoners of war during their
period of incarceration.
It is further submitted that as a matter of law, the individual
human rights of the Hong Kong Veterans are not affected by the Peace
Treaty as the governmental representatives of the countries who were the signatories
to the Treaty had no authority or mandate
to release these basic legal rights. The fundamental
human rights of the individual members of the Hong Kong Veterans do not fall
under the jurisdiction of government control and thus the claim of the Hong
Kong Veterans pursuant to Resolution 1503 is not impacted by the provisions
of the Peace Treaty.
In this context it is clear that the claim currently being brought
before the United Nations relates to the fundamental human rights of a group of
Canadians who possess individual rights that they may pursue or release and who
are not bound by the actions of their government.
We
would submit that the basic
essence and purpose
of Resolution 1503 relates to the fact that individuals
have separate and exclusive rights to initiate claims pursuant to this United
Nations procedure in circumstances
where their human rights have been "grossly violated".
Moreover,
it is respectfully submitted that a close evaluation of the Peace Treaty
supports the conclusion that the Treaty did not adequately compensate the Hong
Kong Veterans for the gross violation of their fundamental human rights:
1. The preamble of the Peace Treaty provides
inter alia that "….whereas Japan for its part declares its intention to
apply for membership in the United Nations and in all circumstances to conform
to the principles of the charter of ;he United Nations to strive to realize the
objectives of the Universal Declaration of Human Rights;.."
It is
of interest to note that the general
assembly of the United Nations adopted and proclaimed by
Resolution 217A(III) on the 10th of December 1948 the " Universal
Declaration of Human Rights".
The Universal Declaration of Human Rights
specifically provides in its preamble that "….whereas disregard and
contempt for human rights have
resulted in barbarous acts
which have outraged the
conscience of mankind, and. the
advent of a
world in which human
beings shall enjoy freedom of speech and belief
in freedom from
fear and want
has been proclaimed as the highest
aspiration of the common people...".
Article
5 of the Universal Declaration of Human Rights states:
''No one shall be subjected to torture or to cruel,
inhumane or degrading treatment or punishment."
Article 8 provides:
"Everyone has the right to an
effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by-law."
It is submitted that the Peace Treaty
became effective April 28, 1952 almost four years after the Universal
Declaration of Human Rights was declared and recognized by Japan. Notwithstanding Japan's express
intention to accept the objectives
and provisions of
the Universal Declaration of
Human Rights, the Japanese have failed to satisfy the claim of the Hong Kong
Veterans for the gross violation of human rights imposed upon these Canadian
servicemen during World War II.
2. It is our further
submission that the provisions of the Peace Treaty which resulted in certain
nominal indemnification for the Hong Kong Veterans did not include appropriate
compensation for the slave labour and brutality experienced by these Canadian
servicemen.
The per diem awards that were eventually granted to the Hong Kong
force were paid from 'The War Claims Fund'' realized from the sale of Japanese
assets in Canada pursuant to the provisions of the Peace Treaty. The total
amount actually realized in this regard, according to the report of the
Canadian War Claims Commission, amounted to only slightly more than three
million dollars. It is further to be recognized that this fund was to be
employed to satisfy all property claims as well as the claims for "maltreatment".
This fund was realized under Article 14 of the Peace Treaty, which
stated "….the Canadian Government has the right to seize, retain,
liquidate or otherwise dispose of all property of Japanese origin in
Canada with very minor exceptions such as diplomatic or consular property."
Accordingly, the Hong Kong Veterans and those representing their
interests had no alternative but to accept the per diem payment of $1.50 which was obtained largely from this "War
Claims Fund"*. As a matter of
historical background it was considered at the time of the issue of the final
report of the Chief of the War Claims Commission in Canada that no other source
of funds was available to satisfy the claims of the Hong Kong veterans which
resulted in the payment of the $1.50 per diem amount in accord with the
recommendation of the War Claims Commission.
It should be noted that no attempt was made to obtain funds directly
from the Japanese government at that time, in that Japan was involved in the
re-structuring of its economy following World War II and it had to be accepted
that no additional funds were available.
Article 14 (a) of the Treaty indicates as follows:
"It is recognized that Japan should pay
reparations to the Allied Powers for the damage and suffering
caused by it during the war. Nevertheless, it is also recognized that the
resources of Japan are not presently sufficient if it is to maintain a
viable economy to make complete reparation for all such damage and suffering
and at the same time meet its other obligations."
It is also noteworthy in our respectful submission
that the Peace Treaty only released the Japanese government from other reparation
claims provided that such claims arose from "….actions taken by Japan….in
the course of the prosecution of the war….".
*In October, 1952, the first war claims payment in the amount of one dollar per day of imprisonment was made to
the Hong Kong veterans by means of an Order-in-Council of the Canadian Government. In 1958,
an additional $0.50 per day was awarded.
Article 14(b) indicates:
"Except as otherwise provided in the present
treaty, the Allied Powers waive all reparation claims of the Allied Powers,
other claims of the Allied Powers and their nationals arising out of any
actions taken by Japan and its nationals in the course of the prosecution of
the war, and claims of the Allied Powers for direct military costs of
occupation."
It is respectfully submitted that the consistent pattern of
government directed acts of brutality, torture, murder and slave labour carried
out by the Japanese against the Hong Kong Veterans extend far beyond "actions"
required for "the prosecution of the war".
It is our position that the gross violation of human rights experienced
by the Hong Kong Veterans represented conduct and behaviour which in no sense equated to actions which
were necessitated by any Japanese wartime objective or purpose.
3. It is further to be noted that through
the years of negotiations with the Japanese, it has remained their position
that the Peace Treaty places a
limitation on further claims for
reparation or compensation.
We
would respectfully submit that the United Nations itself has refuted this
position by adopting, (by means of General Assembly Resolution 2391 (XXIII) of
October 26, 1968) the "Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes against Humanity". This Convention, which
was entered into force on November 11, 1970 in accordance with Article VIII is
of interesting import.
Pursuant
to the preamble of the Convention, the following is stated:
"Noting that none of the solemn declarations,
instruments or conventions relating to the prosecution and punishment of War
Crimes and Crimes against humanity made provision for a period of limitation,
Considering that war crimes and crimes against
humanity are among the gravest crimes in international law,
Convinced that the effective punishment of war
crimes and crimes against humanity is an important element in the prevention of such crimes, the
protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of co-operation among
peoples and the promotion of international peace and security,
Noting
that the application to war crimes and crimes against humanity of the rules of
municipal law relating to the period of limitation for ordinary crime is a
matter of serious concern to world public opinion, since it prevents the
prosecution and punishment of persons responsible for those crimes,
Recognizing that it is necessary and timely to affirm
in international law through this convention the principle that there is no
period of limitation for war crimes
and crimes against humanity and
to secure its universal application,"
The
convention continues by indicating that no statutory limitation shall apply to
crimes arising out of World War II and more particularly, Article II states as
follows:
"If any of the crimes mentioned in Article 1 is
committed the provisions of this convention shall apply to representatives of
the state authority and private individuals who, as principles or
accomplices, participate in, or directly incite others to the
commission of any
of those crimes,
or who conspire to commit them, irrespective of the degree of completion, and to representatives of
the state authority
who tolerate their commission."
We
would therefore submit, that with specific reference to the claim of the
Hong Kong Veterans, that the
principles established under
the 1970 "Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity" were enacted to ensure:
(a) That the proper recognition of war crimes and crimes against
humanity represent an important element
in the prevention of such crimes and the protection of human rights and
fundamental freedoms;
(b) That the rendering of justice to victims
of such atrocities shall remain a paramount concern; and,
(c) That a universal declaration of the United Nations provide that
no statutory [imitation exist for war crimes and crimes against humanity.
4. It is also of interest to note that only
pursuant to Article 16 of the Peace Treaty are prisoners of war of Japan
mentioned in any manner:
"As an expression of its desire to indemnify those
members of the Armed Forces
of the Allied Powers who
suffered undue hardships while
prisoners of war of Japan, Japan will transfer its assets…..to the
International Committee of the Red Cross which shall liquidate such assets and
distribute the resultant fund to appropriate national agencies for the benefit
of former prisoners of war and their families
on such basis as it may
determine to be equitable."
It is our respectful
submission that the
concept of suffering
"undue hardships" does not connote in any meaningful sense the
gross violation of human rights suffered by the Hong Kong Veterans as prisoners
of war of the Japanese. In effect, we would submit that the Peace Treaty does
not address the subject of the
contravention of fundamental
human rights and
in actuality, the Treaty focusses more particularly on economic and
property rights vis-a-vis the relationship of the Allied Powers and Japan
following World War II.
Furthermore,
it is essential to our present claim
that it be understood that the full
extent of the disabilities and incapacities suffered by the Canadian Hong Kong
Veterans was not recognized at the time
of the Peace Treaty. We would submit that the report of Dr. Gustave Gingras,
CC, KStJ, QHP, MD, FRSA,
DM, LLD, DCL,
DSc, FRCPC, "THE
SEQUELAE OF INHUMAN CONDITIONS AND SLAVE LABOUR
EXPERIENCED BY MEMBERS
OF THE CANADIAN COMPONENTS CF THE HONG KONG FORCES, 1941 - L945, WHILE PRISONERS OF THE JAPANESE GOVERNMENT" as found at Appendix
"A", of this submission outlines in
comprehensive detail the
nature and severity
of the residual disabilities and incapacities
presently being experienced by
these Hong Kong Veterans. In our
respectful submission these residual disabilities and incapacities have not
been appropriately compensated in any manner by the Japanese and
represent the focus
of our current claim pursuant
to Resolution 1503 of the United Nations Economic and Social Council
(1970).
As
initially concluded by the aforesaid Richardson Report:
"…even cursory observation of many of these
veterans today will verify
the permanent damage
that was suffered
under deplorable conditions
experienced by no other prisoner of war".
Further,
the Richardson report stated:
"…Twenty years after the liberation of these men
from 44 months in captivity there is conclusive evidence in medical literature
and/or in this report of the nature and course of some of the disabilities…."
It would
be our respectful submission than
the report of
Dr. Gingras updates these medical findings in support of the residual
disabilities and incapacities currently being suffered by the individual
members of the Hong Kong Veterans.
The
following represents the conclusions to Dr. Gingras' extensive report:
"1. There is no doubt that those ex-POWs who
have survived to date (544 of those repatriated to Canada)* were endowed with an incomparable state of
physical and psychic health to have survived until now. However,
100%. of the survivors sampled suffer from chronic ailments.
*Probably minus 17 in
1986/87
2. Forty-six percent of those repatriated
have since died. It is noted that those
who died did so around the age of 40 years. When they turned 40, their Life expectancy,
as shown by statistics, increased. The average age for male Canadians being
72.9 it is not necessary to refer to
actuarial tables to prove
that under normal
circumstances, these individuals' lifespan would have been
extended.
3. In all camps both on the mainland and in
Japan, the prisoners were underfed. One hundred percent have
suffered from avitaminosis. The diet was never more than 2,000
calories per day,
and frequently as
low as 900 calories per day, depending on the area of incarceration.
4. All prisoners suffered a high degree of
pain, particularly in their lower extremities, as a consequence
of avitaminosis.
5. Neurological sequelae are still
present in 150, or 37.5%. of the 400 files reviewed.
Some neurological sequelae are the cause of pain, but all interfere with the
activities of daily
living. In some
cases, the individuals are
completely dependent. Of late, new neurological and
pathological phenomena have appeared, which may well be associated
with incarceration under severe conditions.
6. Almost
50% of the sampled
survivors have suffered
from psychiatric conditions.
Similar percentages have been established by other researchers.
The consequences of these psychiatric conditions
have had major effects on social behaviour.
7. Almost 50% of the 400 samples suffer from
gastro-intestinal ailments. Surgery was required in a large number of
cases. Dysentery has been the cause of
a number of deaths.
8. Prisoners of War, as a whole, and now a
number of survivors (29.3%) suffer from
foot deformities, pain, and neuritis due
to frost-bite. Many wear
orthopedic shoes.
9. Almost
50% of the sample survivors have experienced oral and dental
pathological ailments. The number
of those using prosthesis far
exceeds that of the normal population.
10. Thirty percent of the survivors sampled
suffer from optic atrophy or the sequelae of corneal and blepheral
pathologies. Thirty-one members of the
Hong Kong Veterans' Association are legally blind.
11. Thirty-three percent of the
400 samples demonstrate spinal or paraspinal
ailments. These pathological phenomena increase with age.
12. The
POWs were subjected
to accidents during
forced labour and/or suffered ailments which were
the cause of
permanent disabilities:
fractures, sprained articulations and frost-bite. Non-accidental conditions
include, among many
others, acrocyanosis, neuritis,
tenosynovitis, bursitis, etc.
13. Twenty-nine percent of the sample survivors
suffer from cardiopathy or related diseases of the vascular system. From 1945
to 1970, eighty-eight repatriated ex-prisoners died
from various cardiac ailments.
14. Twenty-nine percent of those sampled
suffered from respiratory ailments at the time of repatriation".