GENEVA, SWITZERLAND, February 4, 1991 - "In signing the 1952 Peace Treaty with Japan, the Allied governments ignored the rights guaranteed by the Geneva Conventions to prisoners of war and civilian internees held by the Japanese. This was the central theme of the submission filed in Geneva today by representatives of The War Amps, at a session of the Commission on Human Rights."

The submission was presented on behalf of Allied prisoners of war and civilian internees from Canada, the United States, the Netherlands, New Zealand and Australia, who are seeking compensation from the government of Japan for war crimes, crimes against humanity and gross violations of human rights committed during the Second World War.

It has been the consistent position of the Japanese government that compensation to be paid was provided for in the Peace Treaty entered into between Japan and the Allied powers, executed on September 8, 1951 and effective April 28, 1952. This was communicated to The War Amps of Canada in a letter from the Japanese Embassy in Ottawa on May 21, 1986.

The submission of The War Amps argues that the indivdual human rights of Allied prisoners of war and civilian internees were not affected by the Peace Treaty. The basis of the argument is that the Allied Governments as signatories to the Treaty had no legal authority or mandate to release the basic legal rights of their citizens.

The submission states further that the fundamental human rights of the individual Allied PoWs and civilian internees do not fall under the jurisdiction of government control.

International law supports The War Amps in that, in the matter of human rights, an individual is not bound by the actions of his or her government.

A number of leading international human rights experts and Non-Governmental Organizations (NGOs), including the International Committee of the Red Cross, agree with this position.

In particular, the Red Cross points to the specific provisions of the Geneva Conventions, as explained in a letter to The War Amps on May 10, 1988.

Specifically, the Hague Convention of October 18, 1907, in Article 3, provides:

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

In what is known as the Third Geneva Convention of 1949, specific violations are cited such as "wilful killings, torture or inhuman treatment ... wilfully causing great suffering or injury to body or health ..." (Article 130).

More significantly, Article 131 of the 1949 Geneva Convention states:

"No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article."

The opinion from the International Committee of the Red Cross states:

"...a state remains responsible for breaches of the Conventions and may not absolve itself from responsibility on the grounds that those who committed the breaches have been punished. For example it remains liable to pay compensation."

In its legal commentary on the Geneva Conventions, the Red Cross makes the following observations with reference to peace treaties:

"On the conclusion of a peace treaty, the Parties can in principle deal with problems relating to war damage in general and those relating to the responsibilities for starting the war, as they see fit. On the other hand, they are not free to forego the prosecution of war criminals, nor to deny compensation to which the victims of violations of the rules of the Conventions and the Protocol are entitled."

The submisson from The War Amps of Canada to the Commission on Human Rights relies heavily on the conclusions of the International Committee of the Red Cross.

Firstly, Article 131 of the Third Geneva Convention makes it clear that No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability under this Convention. Therefore, while the Allied Governments were indeed signatories to a peace treaty with Japan which became effective in 1952, such governments were in fact barred by the Third Geneva Convention of 1949 from entering into any agreement with Japan which would absolve that country of its liability to pay compensation to former prisoners of war or internees.

In its arguments The War Amps relies as well on the opinion of the International Committee of the Red Cross to the effect that the Geneva Conventions constitute the "customary law for all nations".

This opinion is also held by Professor John Humphrey, who acts as a consultant to The War Amps. Professor Humphrey, a member of the Law Faculty of McGill University in Canada, was the Director of Human Rights for the UN for some 25 years. In the first submission made by The War Amps to the Commission on Human Rights in May 1987 Professor Humphrey gave the following opinion:

"The fundamental principles enunciated in that Convention had, however, by that time, become part of the customary law of nations and were, therefore, binding in Japan. That, in any event, was the opinion of the Tokyo War Crimes Tribunal, when in 1948 it condemned Japanese military and civilian personnel for their violations of, among other things, the rights of prisoners."

In general terms, The War Amps brief makes significant reference to conclusions of the International Military Tribunal of the Far East, which stated in its report of 1948, as follows:

"During a period of several months the Tribunal heard evidence orally or by affidavit from witnesses who testified in detail to atrocities committed in all theatres of war on a scale so vast, yet following so common a pattern in all theatres, that only one conclusion is possible - the atrocities were either secretly ordered or wilfully permitted by the Japanese government or individual numbers thereof by the leaders of the armed forces."

The submission by The War Amps today is the fourth in a series commenced by that organization in 1987. Subsequently, The War Amps was granted NGO status to argue the claims before the Human Rights Commission.

In its previous submissions, the organization provided extensive evidence regarding the atrocities and inhumane treatment experienced by Canadian Armed Forces who were captured by the Japanese in Hong Kong in December of 1941, all of which represented gross violations of human rights. Subsequent submissions dealt with the right to compensation.

In August of 1990 the claim of the Canadian War Amps group, together with claims from other countries including Britain, the United States, Australia, New Zealand and the Netherlands, were forwarded to Japan for comment.

At that time, a representative of the Japanese Embassy in Canada, reiterated the opinion of the Japanese government which was to the effect that the Peace Treaty with Canada effectively dealt with all compensation claims.

The War Amps group is now taking the stand that the position of the Japanese government appears to be untenable, having regard for the principles of the Geneva Conventions which state clearly that a peace treaty cannot, in itself, represent a prohibition against the claims of wronged individuals whose human rights have been contravened.

The War Amps is proposing as well, that the Allied Governments must accept some responsibility in the matter in that, in signing the Peace Treaty, the Allied Governments were acting in a manner contrary to the Geneva Conventions which provide, quite clearly, that no party can absolve either itself or another contracting party from the responsibility to pay compensation.

Brian Forbes, Legal Counsel to The War Amps, concluded the submission to the Commission on Human Rights by stating:

"It is totally unacceptable and inappropriate for the current Japanese government to suggest that the Peace Treaty of 1952 terminates Japan's legal, moral and humanitarian obligation to these individuals who have suffered for so many years as a direct consequenceof their incarceration by the Japanese during the Second World War."