대일전후보상소송과 국제인도법

Abstract

Various claims and legal issues have been raised and addressed in the so-called“ After War Compensation”suits against Japan which were brought to the Japanese domestic courts. Among them, whether victims’individual claims rights based on international humanitarian law should be recognized or not has been one of the most salient issue of international law. This study is to review how this issue of international law, namely the problem of“ individual claims rights”based on international law, has been treated by the plaintiffs, the defendants and the courts in the concrete suits. Through the critical review and examination of the problem, it also tries to clarify some conceptual misunderstandings of and confusion with the concept. In the After War Compensation suits, submissions to the Japanese domestic courts were partly based on international humanitarian law which composes a part of international law. So the problem of individual as a subject of international law became an object of keen debate. Whether State’s obligation provided in the Article 3 of the Hague Laws and Customs of War on Land Convention was owed towards other State Parties or individuals was another hot point of confrontation during the course of the suits. Whether relevant international law might be applied in the Japanese domestic courts to 192 동북아역사논총 25호 resolve the disputes also was a subject of controversy. As After War Compensation suits on the grounds of violation of international humanitarian law by Japanese government were raised before Japanese domestic courts, it was unnecessary for the parties to the suits to elaborate theoretical arguments concerning individual as a subject of international law. The suits were instituted before Japanese domestic courts and Japan has been generally incorporating international law as its domestic law. Therefore, what should be really contended were the problem whether individual’s right was stipulated in the treaties (or customary international law) invoked in the suits and, if it could be answered in the affirmative, whether those stipulations might be directly applicable as a criterion of judgment. The judgments of the suits negated plaintiffs’standing before the court on the ground that they could not be recognized as subjects of international law. They deduced this conclusion from the interpretation of the Article 3 of the Hague Laws and Customs of War on Land Convention. At the same time, they did not make any judgment with regard to the problem of the domestic applicability of the relevant treaties. This conclusion and attitude of the judgments seem to be the result of grave misunderstanding of the significance of the fact that plaintiffs’claims were submitted to the Japanese domestic courts, though their grounds were violation of rights vested to individuals by international law. The defendants and judgments of the suits were in concordance in that they both denied individual as a subject of international law through the interpretation of the Article 3 of the Hague Laws and Customs of War on Land Convention. However, this kind of interpretation of the provision lacks persuasiveness and is unacceptable when we take the travaux pre´aratoires of the Convention. When we see the problem under the perspective of the direct effect of treaty, it might be said that the Japanese courts would have been better to judge whether they should give remedy to the victims of Japanese government’s violation of international law solely in accordance with the courts practical usage and relevant article of the Japanese Constitution. It was not necessary for them to review and let their judgments be based on the discourse of individual as a subject of international law and the jurisprudence of State responsibility. Japanese courts’denial of allowing remedy to the victims of the violation of international humanitarian law and their refusal to implement individual’s rights under international humanitarian law may be said to be the result of their narrow and archaic approaches to international law. In the judgments of the suits pursuing the compensation for injuries done by Japanese government, Japanese courts ignored the developments and changes which can be seen in the contemporary legal thoughts of international law. It implies that “After War Liquidation”of Japanese responsibility through juridical organs of Japan which enables just and adequate compensation for the victims would not be realized unless Japanese government or judiciary changes its attitude toward the problem itself.