일본기업의 국제법적 책임 ― 2차대전 중 국제인권규범 위반행위와 관련하여 ―

Having developed in tandem with Japan's modernization and imperial expansion since the Meiji Restoration, the zaibatsu pressed hundreds of thousands of Korean, Chinese and Allied POWs to serve its labor demands in atrocious conditions without pay in collaboration with the Japanese government. After Japan's defeat in the war, the Japanese corporations systematically concealed the relevant facts for fear of being prosecuted by the Allied authorities as war criminals and committed the outrage of using the deposit mechanism to effectively appropriate the unpaid wage for the Korean laborers. The Allied prosecution planned to indict the zaibatsu leaders at the International Military Tribunal for the Far East (IMTFE), but failed due to lackluster investigation. In other war crimes trials, with the exception of prosecution of the field office agents responsible for the massacre of Chinese laborers in Hanaoka, the zaibatsu executives managed to avoid punishment because of the lack of evidence and the policy change in the US occupation authorities that accompanied the start of the Cold War. In its post-war reparation policy, Japan restricted the domestic coverage to the Japanese nationals who served or were mobilized by the Japanese state and thus categorically denying benefits to the non-Japanese slave laborers as well as Japanese civilian victims of Allied bombings. Internationally, the bilateral treaties signed by Japan with other nations provided for reparations in kind or service instead of monetary payment on the state-to-state basis without provisions for the individual compensation of the victims due to US intention to reduce Japan's economic burden. The Japanese corporations in fact used this form of reparation as an opportunity for overseas business expansion. In contrast, Germany began providing individual restitution to the victims of Nazi crimes separate from the general losses caused by war since the Allied occupation period and this led to the enactment of the Federal Indemnification Law in 1956. In the international plane, the reparation for the war losses were postponed until the reunification of East and West Germany by the 1953 London Debt Agreement while the 1952 Transition Agreement set out the obligations on the part of Germany to make compensations for the Nazi crimes within its economic capacity. In accordance with the latter treaty, West Germany signed bilateral treaties with other West European nations that stipulated the latter to make individual compensations to the Nazi victims in the jurisdiction with the funds provided by Germany. The Nazi slave labor was categorized as general damages arising from war instead of war crime resulting the indefinite postponement of its reparation by the terms of the 1953 London Debt Agreement. Private enterprises can be made the subject of rights and duties based on treaty, custom and other sources of international law. The forced conscription and slave labor perpetrated with the active involvement of Japanese zaibatsu constituted violations of humanitarian law and other international norms as well as discriminatory policies in contravention of Japanese domestic law. These illegal acts under international law create duties on the part of the Japanese corporations to remedy their victims. On the other side of the aisle, the victims too have the right to demand remedies provided that appropriate international or domestic procedures exist. The stipulations implied under article 3 of the Hague Convention (IV) respecting the Laws and Customs of War on Land provide an example of such a right. In the case of slave labor, the victims have the right to demand and receive reparation from the Japanese government and corporations in question. Japan maintains that the individual claims ceased to exist as a result of inter-state agreements such as the San Francisco Peace Treaty, but Japan itself officially stated that this merely meant that the state of victims renounce their right to espouse diplomatic protection on their behalf; thus, the individual claims of the victims remain valid. Furthermore, the wording of each post-war treaty signed by Japan is such that it leaves room for further reparation demands. It must be noted in particular that the great leniency was shown in reparation demands against Japan due to its dire economic conditions in the immediate post-war years and Japanese government and corporations today who are the main beneficiaries of this generous policy owe a debt of responsibility to make belated reparations to their wartime victims. The victims of the gross violations of international human rights law and serious violations of international humanitarian law may ask for reparation in the form of restitution, compensation, rehabilitation and satisfaction. The satisfaction which includes fact-finding investigation, official apology and history education has special significance in the reparation for these victims. In realistic terms, lawsuits brought in the courts of Japan and other nations will not be sufficient in realizing the due reparation for the victims; it would ultimately require a comprehensive reparation agreement that includes the representatives of the relevant nations and victims' support groups.