Uncovering post-WWII accountability, in Hong Kong

(Thank you to IntLawGrrls for the opportunity to contribute this introductory post, Part 1 of a 2-part series; Part 2 is here)

It was a real surprise for me to find, shortly after taking up an academic posting at the University of Hong Kong in 2005, that Britain’s one-time Pearl of the Orient had been the site of war crimes trials in the aftermath of World War II.

Very early on, I was delighted to supervise a dissertation about one of the trials by a then-student, Paul Harris, a Hong Kong Senior Counsel. I developed a fascination for the topic.
My own research has uncovered 3 different types of prosecutions:
► Treason trials, in the domestic Hong Kong courts, of persons accused of collaborating with the Japanese regime of occupation;
► War crimes trials, held by Australia with the consent of the British colonial administration, of crimes of particular interest to Australia (for example, concerning the prisoner of war camps in the Dutch East Indies); and, finally,
► Military proceedings brought by the United Kingdom under its Royal Warrant of 1946.
The atrocities committed in Hong Kong during the war were also tried by Chinese military tribunals, and formed part of the dossier of evidence heard in Tokyo by the International Military Tribunal for the Far East.
My work has focused on the third type of proceedings, to which I refer as the Hong Kong trials. In my article ‘Rediscovering the war crimes trials in Hong Kong, 1946-1948’, recently published in the Melbourne Journal of International Law, I introduce the product of several years of research into the topic.
This project began with a research grant that I won from the Hong Kong government in 2008, to: gather together the case files that were kept at the National Archives in Kew, about 10 miles west of central London; create a database to make the files available to the public; and analyse the materials. I launched the Hong Kong’s War Crimes Trials Collection website and database (above) in 2010, and have been continuing to conduct research in the area ever since.
As detailed in data available at the website, the accused in the Hong Kong trials were primarily members of the Imperial Japanese Army, including the Kempeitai, although several civilians and Navy officers were tried as well. In total, 46 judgements were issued. Of these, 44 were confirmed by the Reviewing Officer (Commander of Land Forces, Hong Kong), against 108 individuals. There were 14 acquittals. 2 judgements were not confirmed. There was one retrial following non-confirmation of the judgement, and one judgement was transferred to the Supreme Court, to be heard as the crime of treason instead of war crimes.

I am now completing the editing of Hong Kong’s War Crimes Trials, a book that has been commissioned by Oxford University Press. Contributors include experts such as Professor Robert Cryer of Birmingham University in England, Dr. Yuma Totani (right) of the University of Hawaiʻi at Mānoa, Professor Bing Bing Jia of Tsinghua University in Beijing, Dr. Nina Jørgensen (left) of the Chinese University of Hong Kong, Dr. Alexander Zahar of Macquarie University in Sydney, and Professor Roger S. Clark of Rutgers-Camden. Their essays will address, in far greater detail than my article, specific topics emerging from the Hong Kong trials, such as command responsibility, superior orders, and war crimes.
The precursor to that book is my just-published Melbourne Journal article, the contents of which I will discuss in my post tomorrow.

Kanode, woman at Tokyo, in illustrious company

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(Part 2 of a 2-part series; Part 1 is here)

Attorney Grace Kanode Llewellyn (below left) worked as a prosecutor at the International Military Tribunal for the Far East in Tokyo (right), and holds the distinction of being the first woman to appear before an international criminal tribunal.
In my posting yesterday, I introduced Kanode to IntLawGrrls readers, and described what I have discovered thus far of her legal career. As I mentioned, when Judge William Webb of Australia, President of the IMTFE, greeted Grace Kanode Llewellyn before the tribunal on July 1, 1946, he stated,

'We welcome you cordially. You probably are the first woman to appear before an International Military Tribunal.'

Kanode, however, was not the only woman to appear before a war crimes tribunal during that nascent era of international criminal law.  Half a world away at Nuremberg, prosecutors were simultaneously prosecuting the worst criminals of Nazi Germany.
As we know from scholars such as Diane Marie Amann, Diane Orentlicher, and John Q. Barrett, who have brought to light the contributions of women at postwar trials in Nuremberg, one woman played a key role in drafting the London Charter that set up the International Military Tribunal, and in the later Nuremberg proceedings quite a few women distinguished themselves as prosecutors.
Yet Judge Webb’s kind welcome to Kanode is corroborated by records indicating that no woman appeared during the first “Trial of the Major War Criminals” at Nuremberg. This trial lasted from November 14, 1945, to October 1, 1946, and thus Kanode’s appearance at Tokyo, in July 1946, was likely the first by a woman.
Kanode was not the only woman at Tokyo:

Los Angeles Times photo of, from left, Eleanor Jackson, Virginia Bowman, Grace Kanode Llewellyn, Bettie Renner, and Lucille Brunner, published April 15, 1946

► The prosecution team also included, as depicted above, U.S. lawyers Eleanor Jackson, Virginia Bowman, Bettie Renner (about whom, this tragic article), and Lucille Brunner.
► Eleanor Bontecou worked for the War Department and helped prepare for the prosecution of major war criminals in the Pacific theater. (prior IntLawGrrls post)
► A Dutch woman was also listed as assistant prosecution counsel: Mrs. C.R. Strooker.
► American Helen Grigware Lambert gave the final summation against the defendant Naoki Hoshino, a highly influential government official of Manchukuo who served as the Vice Minister of Financial Affairs during the war.
Kanode’s obituary indicated that she was

'believed to be the first woman ever to figure in the proceedings of a military tribunal.'

Though she was the first, she was among illustrious company globally.

Grace Kanode: 'Local Portia' at the Tokyo Tribunal

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(Part 1 of a 2-part series; Part 2 is here)

When the Washington Post ran an article in 1939 announcing the second wedding of D.C. socialite and lawyer Grace Kanode Vickers to Col. Paul Llewellyn, it was titled, “Making Marriage Her Career.”  Luckily, the prediction was false.
Six years later, Kanode began work as an assistant prosecutor at the International Military Tribunal for the Far East in Tokyo (right).
The IMFTE was the second international war crimes tribunal. It was founded in 1946, shortly after the International Military Tribunal at Nuremberg, in the wake of the mass atrocities witnessed during the Second World War.  Over two years, the Tokyo Tribunal tried twenty-eight Japanese leaders for crimes of war.
Although the full scope of Kanode’s specific contributions to the tribunal remains unclear, she holds the distinction of being the first woman prosecutor to appear before an international military tribunal.
When I first learned of Kanode’s work as the first woman prosecutor at Tokyo via a footnote that referenced her, I became intrigued by her story. What, I wondered, convinced a young lawyer to relocate to postwar occupied Japan in 1946 to try war criminals? Out of curiosity to know more about her undocumented accomplishments, and with a penchant for historical research, I began to research her life and career.
Although this research may raise more questions than it answers, my posting today shares what I have learned thus far about Kanode’s career, mostly from archives not available online. I do so in the hope that more discoveries are soon to follow.

Early career in law
A 1931 graduate of the National University Law School (now George Washington University Law School), Kanode distinguished herself through leadership positions while a student. During her time there, she was elected president of the Cy Pres Club, the oldest and largest women’s club in the university.  After graduating, she served as law clerk to Chief Justice Alfred Adams Wheat of the U.S. District Court in D.C., and later worked with the law firm of former Secretary of State Robert Lansing.
She was also sartorially inclined, according to news media.  A 1934 Washington Post article on women attorneys and fashion described Kanode as an “aide to Chief Justice Wheat,” who “has sparkle and dash and wears clothes as they should be worn.”
As a representative of the Women’s Bar Association, Kanode attended the International Congress of Comparative Law in The Hague the summer of 1936. Upon returning, she remarked:

'[I]t was gratifying to note the courtesy and esteem for women in the profession among the men in Paris and London with respect to the use of association libraries and membership.'

She also served as a delegate on behalf of women lawyers at the International Law Conference in Santiago, Chile.  Soon thereafter, in December 1945, she relocated to Japan for eight months to serve as part of the prosecution team in Tokyo.

On March 19

On this day in ...
... 1976, Dr. Eleanor Bontecou (right) died at age 85 in Washington, D.C. (photo credit) A top member of the Bryn Mawr College Class of 1913, Bontecou had been a student of Felix Frankfurter at Harvard Law and in 1928 had earned her Ph.D. from what's now known as the Brookings Institute. A career as a law professor at the University of Chicago was cut short when she contracted sleeping sickness and was rendered bed-ridden in the 1930s. But by 1943 she was better, and embarked on a distinguished governmental career, including service in the Civil Rights Section of the Criminal Division of the Department of Justice and in the War Department. In the latter, she inspected post-World War II proceedings at Nuremberg (thus making her the newest addition to our Women at Nuremberg series), and further helped to prepare war crimes cases to be tried in Tokyo by the International Military Tribunal for the Far East. On retirement she aided persons harmed by the anti-Communist fever of the McCarthy era. Three years before her death, Bontecou gave an oral history interview to the Truman Library, which also houses Bontecou's papers.


(Prior March 19 posts are here, here, here, here, and here.)

On August 8

On this day in ...
... 1942, the same day that The New York Times published a report that President Franklin D. Roosevelt "continued study" of death-penalty recommendations made by a special military commission he had convened, the United States executed 6 would-be saboteurs by electrocution at a jail in the District of Columbia. They were among 8 men who'd traveled by submarine from their native Germany and landed months earlier on the U.S. coast. During a recess in their July trial, defense attorneys had sought relief from the U.S. Supreme Court, which refused in Ex parte Quirin (1942). Among those executed was one Herbert Hans Haupt, whom the Court presumed held U.S. citizenship -- a presumption that would become significant in the post-9/11 judgment in Hamdi v. Rumsfeld (2004). The Times further reported on this day that Haupt's parents were not notified of their son's death -- for the reason that the parents and 4 other Chicagoans were in jail on suspicion of having helped their son. Also of note: the Library of Congress photo at right, of the "[k]ey figures in the trial of the eight saboteurs," includes at least 2 who'd go on to play key roles at the postwar trials of accused war criminals. They are: No. 2, Francis Biddle, then Attorney General of the United States and and later the American Judge on the International Military Tribunal at Nuremberg; and No. 1, Myron C. Cramer, then a Major General in the Army JAG Corps and assistant prosecutor in this trial, and later the American Judge on the International Military Tribunal for the Far East, which adjudicated the Tokyo Trial.

(Prior August 8 posts are here, here, and here.)

On April 29

On this day in ...
... 2002, a year after it lost a seat for the 1st time in history, the United States regained a seat on the U.N. Human Rights Commission by winning 1 of 4 seats set aside for western countries. Established in 1947, the 53-member Commission would expire in 2006 and be replaced by the Human Rights Council, a 47-member body to which, as we've posted, the United States this year plans to seek election for the 1st time.
... 1946, in Tokyo, the International Military Tribunal for the Far East formally charged Hideki Tojo, who'd served as Japan's Prime Minister during World War II, as well as 27 other Japanese military leaders. Defendants were charged with 55 counts of international crimes in the indictment. (credit for photo at right of Tojo)

(Prior April 29 posts are here and here.)

On December 23

On this day in ...

... 1948 (60 years ago today), 7 former leaders of Japan were executed for war crimes by hanging at Sugamo prison (left) in Tokyo. The previous month the group, which included Generals Hideki Tojo and Kenji Doihara, had been convicted following a 2-1/2-year trial before the International Military Tribunal for the Far East. (photo credit)

... 1997, economic news was glum amid reports that Moody's Investors Services Inc., "one of the world's largest credit-rating agencies," had "downgraded the sovereign debt of South Korea, Indonesia and Thailand to 'junk' status." The move "seriously impair[ed] the countries' ability to raise the money needed to work through the region's wrenching downturn." Eventually the International Monetary Fund would step in, and economies seemed to be recovering 2 years later. (photo credit)

On November 12

On this day in ...
... 1908 (100 years ago today), Harry Blackmun (right) was born in Nashville, a town in southern Illinois. He grew up in Minnesota, where he practiced law, 1st as a private practitioner and then as in-house counsel to the Mayo Foundation and Mayo Clinic, until 1959, when President Dwight D. Eisenhower appointed him to the U.S. Court of Appeals for the Eighth Circuit. From 1970 to 1994 he served as a Justice of the U.S. Supreme Court. Blackmun wrote the opinion for the Court establishing a right to privacy with respect to abortion in Roe v. Wade (1973), and subsequently spent much of the rest of his career defending the judgment. After his death in 1999, his papers were opened to the public at the Library of Congress. An excellent study of his life in light of those papers is Becoming Justice Blackmun (2006) by Linda Greenhouse, who recently retired as the New York Times' Supreme Court correspondent and soon will be a visitor at Yale Law School.

... 1948 (60 years ago today), the International Military Tribunal for the Far East levied sentences of death on 7 Japanese men whom it had convicted of war crimes. "Sixteen others were sentenced to life imprisonment, and the remaining two of the original 25 defendants were sentenced to lesser terms in prison." The prisoners whom the Tokyo Tribunal (left) had condemned would be hanged 6 weeks later. (photo credit)

Curious about Munaf

There's something curious about the United States' position in Munaf v. Geren, on which the Supreme Court will hear oral argument Tuesday morning.
Petitioning for a writ of habeas are Mohammad Munaf (left) and Shawqi Ahmad Omar (below left), both U.S. citizens who also hold citizenship in a 2d country, and both of whom now are detained in Iraq. The U.S. brief filed in advance of oral argument cites as the "threshold jurisdictional question" in the case whether

United States courts lack jurisdiction to review the detention of individuals held broad pursuant to international authority, including individuals held by United States forces acting as part of a multinational force.

Interesting question, particularly given that the 1949 per curiam judgment in Hirota. There, as I discussed a while back, out of 9 Justices agreed denied habeas petitions challenging convictions issued by the International Military Tribunal for the Far East, the Tokyo-based counterpart to the Nuremberg trials. The Court in Hirota deemed the IMTFE a "military tribunal" established by U.S. General Douglas MacArthur "as the agent of the Allied Powers," so that "the courts of the United States have no power or authority to review, to affirm, set aside, or annul the judgments and sentences imposed." (p. 17)
But here's what curious: in Munaf the U.S. government contends that U.S. troops that're detaining petitioners do not hold them "'in custody under or by color of the authority of the United States,'" as subsection (c)(1) of the federal habeas statute requires, for the reason that those troops are detaining petitioners "pursuant to international authority"; that is, the coalition known as Multi-National Force (MNF). (pp. 17-18)
The claim suggests a break in the U.S. chain of command -- a cession of U.S. sovereignty -- that's at odds both with the staunchly sovereigntist stance of this administration and with extrajudicial statements that administration officials have made. To cite just 2 examples, on June 5, 2004, Colin Powell, then the United States' Secretary of State, wrote in a letter to Lauro L. Baja, Jr., then President of U.N. Security Council:

[T]he MNF must continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission, and in which the contributing states have responsibility for exercising jurisdiction over their personnel .... The existing framework governing these matters is sufficient for these purposes.

Likewise, in a July 1, 2004, U.S. Department of Defense briefing, Brigadier General David Rodriguez, Deputy Director for Operations, J-3, Joint Staff, said with regard to the MNF:

But in every case, all our allies have a chain of command that goes up to their national leaders, just like we do.

Though the clash in claims may not estop the government as a matter of law, am curious to see, should it be noted in oral argument, whether the government reconciles the clash as a matter of persuasive advocacy.


(cross-posted at Slate' s brand-new Convictions blog, as explained below.)

On January 19, ...

... 1943, the Netherlands' Crown Princess Juliana gave birth to a daughter, Princess Margriet, in a hospital room that had been declared Dutch territory though it was located in Ottawa, Canada. The birth occurred during the Dutch royal family's exile in Canada during World War II. Soon after the war ended, in 1948, Juliana became Netherlands' queen; today Margriet's eldest sister, Queen Beatrix I, reigns. The Canadian Broadcasting Co. says of the arrival of Margriet, shown in the family photo at right as an infant in her mother's arms: "The first royal baby to ever be born in North America, the historic birth helped forge a bond between Canada and the Netherlands that endures to this day."
... 1946, the Charter for the International Military Tribunal for the Far East, which would try Japanese persons accused of war crimes during World War II, was adopted. A comparison of this Tokyo Charter to that of the International Military Tribunal at Nuremberg is set forth in this excerpt from War Crimes Against Women: Prosecution in International War Crimes Tribunals (1997), by IntLawGrrl Kelly Askin.

Crimen Sine Lege

One of the most fundamental defenses to a criminal prosecution is that of nullum crimen sine lege, nulla poena sine lege (“no crime without law, no punishment without law”), also known by the acronym NCSL. Notwithstanding that respect for NCSL is a hallmark of modern national legal systems and a recurrent refrain in the omnibus human rights instruments, many jurists have argued that international criminal law (ICL) has to date failed to fully implement this principle. Having just finished a casebook in the field with Ron Slye of University of Seattle School of Law, I have been exploring that question.

The absence of a rigorous manifestation of NCSL within ICL can be traced to the dawn of the field. In the post-WWII period, NCSL was at the heart of the defendants’ challenge to the legality of the near-identical Charters governing the international military tribunals at Nuremberg and Tokyo. The Allied representatives drafting the Charters could have easily relied solely on the well-established constellation of war crimes to prosecute the WWII defendants. Instead, they opted to innovate and assert jurisdiction over two additional crimes, not theretofore codified: crimes against the peace (the crime of aggression in today’s lexicon) and crimes against humanity. War crimes, while deserving of opprobrium, did not fully capture the Nazi atrocities, which radiated outward in acts of aggression and penetrated inward as persecutory pogroms against compatriots.

The judges of the Nuremberg Tribunal (above left), in reasoning that was to be later echoed by their brethren on the Tokyo Tribunal, rejected the defense with a troika of analytical claims:

► The first move qualified the very application of the maxim, which the Tribunal argued is “not a limitation on sovereignty, but is in general a principle of justice.” This implied, of course, that states could override the principle in the collective exercise of their executive, legislative, or judicial powers.

► Second, having assigned the defense to the more flexible realm of equity, the Tribunal concluded that prosecution was justified, because the defendants could not have reasonably thought their conduct was lawful and it would be unjust to exonerate malefactors:

To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances, the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.

► Third, the Tribunal ruled that the Charter was an “expression of international law existing at the time of its creation.” With the NCSL defense neutralized, the Tribunal rendered judgment on all counts in the Indictment.

Proving that there is nothing new under the sun, these arguments are repeated in the modern ICL jurisprudence. Where states have failed to enact comprehensive ICL, judicial institutions have engaged in a full-scale refashioning of ICL through jurisprudence addressed to their own jurisdiction, the elements of international crimes, and applicable forms of responsibility. Along the way, courts have updated and expanded historical treaties and customary prohibitions, upset arrangements carefully negotiated between states, rejected political compromises made by states during multilateral drafting conferences, and added content to vaguely worded provisions that were conceived more as retrospective condemnations of past horrors than as detailed codes for prospective penal enforcement. By reviewing these cases, it is possible to construct a taxonomy of analytical claims made by tribunals adjudicating international criminal law to evade or neutralize the defense of NCSL. These arguments turn on a complex interplay of immorality, illegality, and criminality and depend in large part on the multiplicitous sources of international law.

Collectively, these cases -- in which defendants have been made subject to new or expanded criminal law rules -- have the potential to raise acute concerns about the rights of criminal defendants before today’s international criminal tribunals. Nonetheless, the methodology developed by the European Court of Human Rights (right) to enforce the articulation of the NCSL principle in its constitutive document, the European Convention for the Protection of Human Rights and Fundamental Freedoms, suggests that the NCSL jurisprudence has not compromised the fundamental fairness of ICL. Indeed, defendants were on sufficient notice of the foreseeability of such jurisprudential innovations in light of:

► extant domestic penal law;

► universal moral values expressed in international human rights law;

► developments in international humanitarian law and the circumstances in which it has been invoked; and

► other dramatic changes to the international order brought about in the post-World War II period.

I am exploring these ideas in a paper I posted here. I welcome your comments.

World War II déjà vu, all over again

The 2d of the transnational cases the U.S. Supreme Court's just agreed to review promises a revisit, yet again, to World War II-era precedents.
Litigation post-9/11 has prompted the Court more than once to plumb those precedents in determining whether and to what extent the Constitution protects persons the United States detains in time of conflict. In the citizen-enemy-combatant case Hamdi (2004), for example, the plurality relied heavily on its interpretation of Quirin (1942); in contrast, 2 other Justices dwelt on statutory reform in light of Korematsu (1944). Noteworthy has been the reliance on cases in which Justice Wiley B. Rutledge, Jr., for whom Justice John Paul Stevens clerked in 1947-48, took part: Stevens' opinion for the Court in Rasul (2004) drew on Ahrens (1948); in Hamdan (2006), on Yamashita (1946). (See analyses here, here, and here, here.) The just-granted Munaf likewise portends a new look at Hirota (1948).
Mohammad Munaf (left) and Shawqi Ahmad Omar (below left), both U.S. citizens who also hold citizenship in a 2d country, are in U.S. custody in Iraq, where a multinational military force is in place. An Iraqi court convicted Munaf of involvement in a kidnapping and sentenced him to death; Omar has not been charged. Both petitioned U.S. courts for habeas relief. The U.S. Court of Appeals for the D.C. Circuit ruled against Munaf 2-1. Yet a couple months earlier, a somewhat different panel of the same circuit had ruled in favor of Omar. Last week the Supreme Court consolidated and agreed to hear both matters. The importance of the 1948 precedent is evident not only in the circuit's reasoning, but also in Munaf's petition for certiorari, which includes this Question Presented:

Does the decision of the Court of Appeals, holding that Hirota v. MacArthur deprives the federal courts of jurisdction under these circumstances, extend the 1948 per curiam opinion in Hirota into conflict with this Court's post-1948 jurisprudence culminating in Rasul v. Bush and Hamdi v. Rumsfeld, and should that conflict be resolved either by restricting Hirota to its proper sphere or by overruling it?

As detailed here by our colleague Steve Vladeck, Kōki Hirota (below right) was a civilian diplomat and erstwhile prime minister who never held military rank; however, most petitioners in Hirota were, like Yamashita, Japanese military officers. Whereas

Yamashita had been convicted by a U.S. military commission sitting in the Philippines, petitioners in Hirota challenged their convictions before the multinational International Military Tribunal for the Far East (IMTFE). The Supreme Court had devoted many pages to its refusal to rule in favor of Yamashita; in contrast, it disposed of Hirota in a 3-paragraph per curiam, the crux of which are these sentences:

We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States. The United States and other allied countries conquered and now occupy and control Japan. General Douglas MacArthur has been selected and is acting as the Supreme Commander for the Allied Powers. The military tribunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers.
Under the foregoing circumstances the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners and for this reason the motions for leave to file petitions for writs of habeas corpus are denied.

The opinion was shorter either than Justice Robert H. Jackson's December 6, 1948, statement that his colleagues were divided 4-4 on whether "the Japanese convicted of war crimes should have some form of relief, at least tentative, from this Court," 335 U.S. 876, or than Justice William O. Douglas' detailed concurrence with the denial of relief that the Court issued 2 weeks later.

Perhaps of particular contemporary interest is the identity of the 2 Justices who did not go along with that ultimate disposition of Hirota: One was Frank Murphy, who served as Attorney General before President Franklin D. Roosevelt appointed him to the bench in 1940. Murphy's dissenting vote in Hirota followed prior dissents in Korematsu, Ahrens, and Yamashita. The other was Rutledge, who'd gone with the majority in Korematsu, but wrote dissents in Ahrens and Yamashita that post-9/11 precedents have cited with favor.

So what did Rutledge do in Hirota? Good question.

The decision itself states:

Mr. Justice RUTLEDGE reserves decision and the announcement of his vote until a later time.

According to his biographer, Rutledge had drafted a dissent before argument was set, in which he set forth reasons the IMTFE might not qualify as a "'validly constituted international'" tribunal, such that exercise of federal jurisdiction would be proper. After argument, though, Rutledge "'passed'" on voting, reportedly remarking to his colleagues in conference, "'This is an international tribunal but if I get over that hump I would act.'" (John M. Ferren, Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge 411-14 (2004)).

Rutledge never did come to rest in Hirota. He never wrote in the case -- never even cast his vote.

Check back in a few months for the role the circumstances of Hirota might play today: As with the other transnational case just granted, Munaf is due to be argued before the Court in spring 2008.

On October 7, ...

... 1942 (65 years ago today), U.S. President Franklin Delano Roosevelt announced that once World War II came to an end, the United States would work with Britain and other countries to assure "that the 'war criminals' who had been guilty of barbarism against the civilian populations in enemy occupied countries be surrendered to the United Nations for punishment." The statement foreshadowed the International Military Tribunals that would be convened years later at Nuremberg and Tokyo.
... 1937 (70 years ago today), Maria Szyszkowska (left) was born in Warsaw, Poland. A member of Poland's Senate as well as an academic and author, she opposes Poland's participation in the Iraq War. She also has championed the rights of gay men and lesbians by inter alia introducing legislation aimed at recognizing civil unions for same-sex couples.

World Conference on Japanese Military Sexual Slavery

Further to Grace O’Malley’s “Go On” post below, I will be attending the World Conference on Japanese Military Sexual Slavery and speaking on a strategy panel during the legal conference on Saturday. A perfect storm of legal doctrines, foreign policy objectives, treaty provisions waiving claims for reparations, failures of political will, and Japanese intransigence has left the “comfort women” with little in the way of legal options at this point. If we imagine a matrix of available legal mechanisms along several axes—international & domestic fora, civil & criminal claims, state & individual defendants—every possible accountability configuration has been either unsuccessful to date or is entirely foreclosed.
The great missed opportunity in this story of impunity and cover up was the failure of prosecutors before the International Military Tribunal for the Far East (“the Tokyo Tribunal”— left) to include charges relating to the “comfort women” in their indictment of the major Japanese Imperialists. For many years, it was widely assumed that this omission was due to the fact that Japan had completely covered up the “comfort system” in the post-WWII period by ordering relevant documents to be destroyed and the women killed or hidden. It later came to light, however, that the Allies had sufficient information at the close of the war to serve as the basis for indictments. (The photo to the right is apparently an Allied soldier interviewing a "comfort woman" in Burma).
Whereas crimes of sexual violence were wholly absent from the Nuremberg judgment, at least at Tokyo the “rape of Nanking” among other atrocities served as the basis for conviction of the major Japanese defendants. There were no facts presented at all about the “comfort system,” however. This is notwithstanding that slavery and the related crimes of forced labor and the trafficking of women and children were outlawed in a number of multilateral treaties (e.g., ILO Convention No. 29 of which Japan was a member). The crimes inherent to the “comfort system” were thus much better codified under international law than many other crimes against humanity prosecuted at Nuremberg and Tokyo.
In terms of civil claims against Japan itself, the states from whom the comfort women were forcibly abducted or fraudulently recruited could have espoused the claims of their female citizens and brought suit against Japan before the International Court of Justice (below), which can entertain civil suits against states that have accepted its jurisdiction. Korea, which was the source of 80% of the victims, would have been an obvious Applicant. Korea, however, signed a treaty with Japan in 1965 that included a waiver of any wartime claims that might be made by Korean nations in exchange for the payment of $800 million in grants, soft loans, etc. And, Japan’s acceptance of ICJ jurisdiction was expressly prospective, so any claims would have been the more indirect and tricky claims related to the cover up and denial of justice.
In terms of domestic fora, the “comfort women” have tried to bring suit against Japan in United States and Japanese courts. In the United States, these claims were foreclosed through the operation of state immunity doctrines (the case was governed by the Foreign Sovereign Immunities Act, which withholds state immunity in only narrow circumstances), the statute of limitations, and the prudential political question doctrine. In getting the cases dismissed on foreign sovereignty and political question grounds, Japan benefited from the assistance of its longtime ally the United States, whose government submitted statements of interest urging the courts to dismiss the cases on the ground that the 1951 Treaty of Peace waived all reparations claims. Article 14(b) of that treaty reads:

Except as otherwise provided in the present treaty, the Allied Powers waive all reparations 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 prosecution of the War.

Its position in the Japanese litigation is in stark contrast to the productive role the United States played in helping to settle scores of historical justice lawsuits filed in U.S. courts against German and Swiss defendants.
In terms of claims against responsible individuals, the only criminal prosecutions held to date were in the then-Dutch East Indies before a Dutch occupation court, which prosecuted Japanese soldiers for abuses against 35 Dutch women held as “comfort women.” Prosecutors did not include crimes committed against Asian women in these proceedings. Conceivably tort claims could have been brought in the United States against responsible individuals under the Alien Tort Statute (ATS) if personal jurisdiction could have been obtained against them here. The ATS carries a 10-year statute of limitation, however, which may serve to bar claims. Arguably, claims should be tolled until at least the early 1990s when official documents about the “comfort system” first came to light and the Government of Japan finally began admitting its role in establishing and maintaining the system in piecemeal and contested apologies.
This legal impasse makes political efforts like House Resolution 121 so important. H.R. 121, sponsored by Representative Mike Honda (D-CA) (left), provides as follows:

That it is the sense of the House of Representatives that the Government of Japan

(1) should formally acknowledge, apologize, and accept historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces' coercion of young women into sexual slavery, known to the world as "comfort women”, during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s through the duration of World War II;

(2) would help to resolve recurring questions about the sincerity and status of prior statements if the Prime Minister of Japan were to make such an apology as a public statement in his official capacity;

(3) should clearly and publicly refute any claims that the sexual enslavement and trafficking of the “comfort women” for the Japanese Imperial Armed Forces never occurred; and

(4) should educate current and future generations about this horrible crime while following the recommendations of the international community with respect to the “comfort women.”

It remains to be seen whether this resolution, together with the results of this weekend’s conference, can spur the Government of Japan to heed the words of Japanese intellectual Uchimura Kanzo (below), who wrote in 1897:

Repentance is humble acknowledgement of the supremacy of the Eternal Law of Justice, from which no man or nation—not even Japan—can be exempt. … The sooner we own our evils as evils the better.

(Posted by Beth Van Schaack, aka "Eleanor Roosevelt")

On May 3, ...

... 1948, in Shelley v. Kraemer, the U.S. Supreme Court ruled unanimously that the Equal Protection Clause of the 14th Amendment to the Constitution forbade covenants that prevented white property owners from selling their homes to blacks. Indicative of the prevalence of the practice at the time, 3 Justices recused for the reason that their own homes were encumbered by such covenants. Arguing the case for petitioners was NAACP lawyer Thurgood Marshall (right), who would go on to serve as a member of the U.S. Court of Appeals for the Second Circuit, as Solicitor General of the United States, and as Justice of the Supreme Court, this last from 1967-91.
... 1945, the International Military Tribunal for the Far East began what would be 2-1/2 years of trials of Japanese persons charged with war crimes in World War II. The classic account of these proceedings is Richard H. Minear's Victors' Justice; a recent study is "Beyond the Geneva Conventions: Lessons from the Tokyo Tribunal in Prosecuting War and Terrorism," by our colleague, Allison Marston Danner.