Assembly Joint Resolution 27
Has Justice Been Served ?

Assemblymember Michael M. Honda
Nov. 21, 1999 at the Whittier College of Law Symposium
and also at the Commonwealth Club in SF

I am here today to address the issue of Japanís War Crimes. I was invited to speak primarily because I authored an Assembly Joint Resolution this session calling on Japan to formally apologize for war crimes and to pay reparations to the victims of those war crimes. I am a teacher by training, but want to be clear that I am not an expert on the issue of war and the atrocities that inevitably appear to accompany war.

What I want to share with you is my point of view on this issue and why I think it is important to pay attention to an issue that took place over 50 years ago. It a view that is personal, stemming from something uniquely American. It is a view that reflects the "new" Asian Pacific American or APA community. Finally, it is a view that is based on and supported by established legal and moral precedent.

1. Why me, a Japanese-American ?

The foundation for my work on this issue began long before I introduced the resolution. Though the war crimes of Japan were largely unknown to me at the time, my involvement in this issue began with the internment of my family and relatives in 1942.

Let me briefly touch on how the Japanese American Redress Movement influenced my involvement in Assembly Joint Resolution 27 or what my staff and I would call "AJR 27."

As I became involved in the civil rights movement in the 1960ís it was clear to me and to many other activists that the Japanese American community was wounded. One would only have to talk to a fellow Japanese American from Hawaii to see the difference. Japanese Americans from Hawaii saw mainland Japanese Americans as different from them -- they considered us bitter, maladjusted and dysfunctional -- because we never recovered from the impact of the internment. You see, the Japanese Americans in Hawaii avoided the mass relocation that took place on the mainland and the calamity that came with it. Of course, as a community we on the mainland lost millions in assets, families were torn apart, and communities were forever lost. However, the greatest damage that was done was to our dignity as human beings and as Americans -- we lost self-respect as a community. A loss that was not suffered by fellow Japanese-Americans in Hawaii.

I became a leader in a movement to call for an apology and reparations. It was not a call for money Ė though the payment of reparations retains symbolic significance. It was not a call to embarrass the government or punish those that conspired to rob us of our dignity. It was a request to acknowledge the truth and to allow us to begin the process of healing our communal wounds.

The impact of the apology and reparations is far reaching. As a community, Japanese Americans still harbor bitterness and many remain forever scarred, however, the apology and reparations have allowed many of us to put aside our bitterness and constructively look back our responses to the internment. Since, the passage of the Civil Liberties Act of 1988 our community has delved deeper into the issues that divided our community during our internment.

For example one of the issues that is now being unearthed is the victimization of those interned in the camps that refused to be drafted until their civil rights were restored. There is much pain surrounding this issue and many are critical of the role of the Japanese Americans Citizens League. As many in our community are -- like myself -- approaching the qualifying age for the senior discount, it is important to deal with these issues while folks are still alive.

The apology by the US Government to the Japanese American community did not "make us whole" and it did not please everyone, however, it did succeed in bringing closure in two infinitely critical ways: (1) It stipulated to one truth Ė establishing once and for all that our community was innocent and the internment was not justified; and (2) It recognized that our community suffered immeasurably and paying reparations is the symbolic detriment accepted by the US Government. Those of us who love this country very deeply, now had grounds to defend it.

There are significant parallels between the Japanese American Redress Movement and the international call for reparations for Japan war atrocities.

A writer in a 1987 Harvard Civil Rights Review article identified several prerequisites for meritorious redress claims: (1) a human injustice must have been committed; (2) it must be well documented; (3) the victims must be identifiable as a distinct group; (4) the current members of the group must continue to suffer harm; (5) such harm must be causally connected to the past injustice. [Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, Harvard Civil Liberties Ė Civil Rights Law Review 22 (1987): 323, 362-97.] Victims of both the Japanese American Internment and Japanís war atrocities meet these criteria.

When we started our redress movement, few Americans knew of the experience of Japanese Americans during WWII. I must confess that until a few years ago, I was only vaguely familiar with Japanís WWII war crimes. I understood that there were war crimes trials and members of the Japanese military were executed. However, it was apparent that I knew a great deal more about WWII war crimes in Europe than in Asia.

For this reason AJR 27 serves an important purpose -- to educate people about what happened in Asia during WWII. The fact that the atrocities were committed by a military operating under the Japanese flag is in many ways irrelevant. The fact that it happened 50 years ago is also irrelevant. The people that died as a result of the atrocities cannot be brought back Ė however, it is very important that people know that they lived and how they died. What is important is that we restore some honor to the lives of those who died in very undignified ways. Some "one" -- some "thing" is accountable and justice demands accountability.

2. Why now ? Why after so long ?

Part of the answer is generation. Time is not on our side -- many of the perpetrators and the victims are old and near death. In order to accomplish something in their lifetime, we must act now.

Another part of the answer relates to the growth in the APA community. AJR 27 represents an issue important to what can only be called the "new" APA community. The APA community is 40% larger than it was 10 years ago. Some regions have experienced exponential growth in the APA population. For example since 1980, Santa Clara Countyís Asian population has increased 405 percent. One in three residents in Santa Clara County is foreign born and over half of the APAs are immigrants.

With the increase in numbers the profile of the APA community has changed dramatically in the same period. When I was growing up Asians were mostly Japanese, Chinese, and Filipinos. However, the last decade has seen new faces with the influx of immigrants from Cambodia, Korea, India, Laos, Taiwan, Thailand, and Vietnam.

As the newer members of the APA community assimilate and speak out, new issues emerge. Since, many members of the new APA community are immigrants, it is not surprising that the issues important to them are international in nature. AJR 27 may be one of the first of these issues.

Though the "new" APA community appears as a homogenous group, on closer examination it is obvious that the APA community is very diverse. Languages and cultures are very distinct, and nationalism runs very deep. Past historic conflicts, such as WWII impact very strongly the relationships within the larger APA community today.

I have learned that there are Filipino-American families in America that will not patronize Japanese-American businesses and will not buy Japanese cars. There are Chinese-American parents that will not permit their children to date Americans of Japanese descent. While there is always friction between ethnic groups, it is not uncommon to find that the pain caused by WWII still defines relationships within the APA community today.

As a call for recognition of basic human rights, AJR 27 reaches across historic barriers in the APA community. AJR 27 represents, in my mind, an important step in finding common ground among APAs. As Americans, representatives of the Chinese, Filipino, Japanese, Korean, and Indo-American communities have joined with veteran groups and organizations representing civilian survivors in support of AJR 27. Though many in the APA community are foreign born there is something uniquely American about AJR 27.

While in our minds it is an American characteristic to seek justice, it is equally an American characteristic to tolerate dissent. So it is not surprising that not every one in the APA community believes that AJR 27 is a good idea. When the Japanese-American reparations movement began, we faced the identical source of dissent. Many believed that too much time had passed, that it was water under the bridge, and that it would re-ignite racist sentiment against Japanese-Americans.

I value the views of my more conservative and protective friends. However, I disagreed then and disagree now. I do not believe that it is ever too late to fight for the dignity of human life Ė to see justice done. Nor do I believe that the pursuit of justice should be deterred or postponed because we fear backlash from those who adhere to the tenets of racism and hate.

While Americans do not have a monopoly on the matter, many patriots like myself believe that at the essence of being American is liberty and justice. As Americans we are guaranteed the freedom to seek justice Ė to redress wrongs. Supporters of AJR 27 are united not as individuals, but as Americans.

I believe this to be a historic moment in the history of the Asian Pacific American community, one that may have far-reaching consequences in the new millennium Ė not just for APAs but for all Americans. It has been my privilege to participate in an issue where barriers of language, culture, and historic conflict are being set aside to further a greater humanitarian objective.

3. Can violations of international law be barred by treaty ?

I am not an expert on international law, but it appears well settled that treaties cannot extinguish individual claims. A 1994 Hastings College Law Review article [17 Hastings Intíl & Comp. L. Rev 497 (1994)] examined this issue in depth. The authors, Karen Parker and Jennifer Chew, found that to the degree that such treaties, including the San Francisco Peace Treaty of 1951, contained provisions extinguishing individual claims such provisions are void.

In 1907, Laza Oppenheim, in his text International Law: A Treatise, wrote:

It is a unanimously recognized customary rule of International Law that obligations which are at variance with universally recognized principles of International Law cannot be the object of a treaty. If for instance a State entered into a convention with another State not to interfere in the case the latter should appropriate a certain part of the Open Sea, or should command its vessels to commit piratical acts on the Open Sea, such a treaty would be null and void, because it is a principle of International Law that no part of the Open Sea may be appropriated, and it is the duty of every State to interdict to its vessels the commission of piracy on the High Seas.

Let me put it another way. A crime in California is not an issue to be negotiated between the perpetrator and the victim. How could we maintain order, if we allowed murderers and rapist to go free, because the perpetrator reached an agreement with the family of the victim? Under our laws the crime is a crime against society and it is not an issue for individuals to negotiate.

In the same way, a violation of human rights is a crime against all of humanity and is not subject to treaties between countries. Neither individuals nor countries can conspire to avoid the applicable laws. To do otherwise undermines the very purpose of laws.

4. Has Japan apologized ? Have reparations been paid ?

Without delving into an area that for many is intentionally clouded and confusing, the best answer to both these questions is "yes" and "no."

Several officials of the Japanese Government have apologized. Yet, other high ranking officials continue to deny that atrocities took place. Yes, some form of reparations have been paid or made available. Yes, treaties have been signed resolving issues between governments. Yet, there are many individual claims, including the claims of those forced into sexual slavery, that are not precluded by treaties and are actionable under international law.

Some argue that since some apologies have been made and some reparations paid, the issues are settled. I disagree. The issue is not whether Japan can on technical grounds elude responsibility. The question is whether justice has been done.

In the case of the Japanese-American pursuit of redress, our government claimed that under the exigencies of wartime, it was legitimate to suspend the constitution and deprive a group of citizens their rights. Many seek to apply the same "excuse" to the case of Japanís war atrocities. They say war is a horrible thing and therefore all that occurs during war is inherently excusable.

Obviously, I disagree. The Hague Convention of 1907, to which Japan was a signatory, also disagrees. The Hague Convention recognizes that even in war international law applies. The Hague Convention prohibited rape, torture, and forced labor including prostitution against both combatants and civilians. The Hague Convention also supports the mechanism of redress for violations of international law. It states in Article III:

A belligerent party which violates the provisions of said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.

At best, Japanís acceptance of responsibility is a mixed bag. At worst, it has been described as institutionalized national amnesia. The "yes/no" nature of Japanís acceptance of responsibility could be resolved with a clear and unambiguous apology approved by the Diet. The "yes/no" nature of reparations could be settled with an offer of settlement of individual claims by the Japanese Government.

Though I am hesitant to draw any comparisons between Japanís war crimes and Germanyís war crimes, I believe that Germany provides a clear example for Japan to follow. Though Germany has been criticized, it is my belief that Germany has made a good faith effort to accept responsibility. And though administering a reparations program is an enormously complex undertaking, Germany has demonstrated that it is possible.

How far should Japan go in further apologies and reparations? I believe that there are others more qualified than I to make that determination. However, as I knew that my government had not done enough until the 1988 Civil Liberties Act became law, I know that what Japan has done up to now is not enough. I am proud to be an American of Japanese ancestry. However, I cannot defend Japanís response to its conduct during WWII.

5. Conclusion

I did not introduce AJR 27 with the purpose of embarrassing the Japanese government. I leave the punishment of war criminals in hiding to the lawyers. I do not wish to compare the inhumane acts of the past with those of the present. I do not desire to open a debate on the validity of foreign policy decisions made at the end of WWII. Circumstances from that time have changed significantly. I know only of a community that has been wounded. I do not deny that there may be others.

I ask that the burden of the injustice be lifted from the lives of the survivors and the families of the dead. Only the government of Japan can lift the burden and only the lifting of the burden can set them free.

I have watched my community suffer as a result of the internment. I have seen the value of an apology and symbolic reparations. I want very much today to convey to you that my community was damaged by the internment, but more importantly we were burdened by the injustice.

The apology and reparations contained in the 1988 Civil Liberties Act lifted the burden of the injustice -- it made my community free. Contained in the apology was the truth -- our truth and indeed it was the truth that lifted the burden -- that set us free.

I ask for no more for the victims of Japanís war atrocities than I asked for my own community: To bring closure -- (1) Stipulation to one truth Ė establishing once and for all that the victims were innocent and their suffering was not justified; and (2) Recognition that they have suffered immeasurably by the paying reparations which becomes the symbolic detriment accepted by the Japanese Government.

Let me close with one final comment. Pearl Buck once said, "None who have always been free can understand the terrible fascinating power of the hope of freedom to those who are not free." I fought our battle for redress fueled by the hope of freedom for my community. I have joined this struggle for redress fueled by the hope of others who wish for nothing more than to be free . . . and deserve nothing less.

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