Over the past decade, a global explosion of demands for reckoning with imperial violence has breathed new life into calls for apologies, for monetary compensation for enslavement, massacres, and violent suppression of de-colonization movements, and for the repatriation of human remains and looted cultural artifacts.Footnote 1 In East Asia, decades after the formal demise of the Japanese Empire in 1945, a new moral landscape for imperial reckoning is emerging as victims of Japanese imperial violence break their silence and social obscurity, whether as survivors of forced migration and enslavement, wartime sexual slavery (the so-called comfort women), massacres, or bio-chemical human experiments. At the heart of this shift is a series of collective lawsuits filed within Japanese jurisdictions since the mid-1990s to seek official apologies, monetary compensation, and commemoration. The cases involve victims from China, Taiwan, South Korea, the Philippines, Indonesia, and other sites of Japanese imperial violence.Footnote 2
This essay tells one part of this larger story, most of which remains to be written, by focusing on slave labor victims from China, whose cases ended up after a very long journey in front of the Japanese Supreme Court and thus came to influence other ongoing lawsuits in Japan on imperial reckoning.Footnote 3 It charts a sea change in the legal sphere over the past three decades brought about by ordinary citizens seeking redress for Japanese imperial violence through sometimes surprising transnational collaborations: Chinese survivors of Japanese imperial violence, more than three hundred Japanese lawyers representing them pro bono, and thousands of citizen activists.Footnote 4 These efforts have culminated in a number of historic settlements, from the first Chinese slave labor settlement in 2000 with Kajima Corporation, through the 2009 settlement with Nishimatsu Construction, to, most recently, the 2016 settlement with Mitsubishi Materials, the largest ever slave labor settlement involving 3,765 victims enslaved at ten mines across Japan.Footnote 5
What does it mean to reckon with imperial violence decades after its formal end? What are the stakes in reckoning with distant, yet still alive, pasts?
These recent demands seek transitional justice that is long overdue. Much has been written about formal mechanisms for addressing systemic state violence and the search for justice in the wake of major political transitions, from postwar transitions in the aftermath of the Second World War to post-authoritarian, post-socialist, and post-genocide transitions at the end of the Cold War. In many cases, transitional justice seeks to acknowledge and provide redress for victims of systematic human rights violations in the previous regime as a way to establish the legitimacy of the new regime and to facilitate reconciliation. Yet, the twin processes of de-imperialization and de-colonialization that took place globally from the 1940s to the 1960s—what I refer to as the unmaking of empire—are rarely discussed within the framework of transitional justice.Footnote 6
In his critique of the transitional justice discourse, David Scott criticizes its liberalist assumption that the already democratic West does not require transitional justice since it is about transforming non-liberal regimes into liberal ones. As a result, he argues, the transitional justice discourse locates liberal democratic regimes outside the purview of transitional justice as the holders of liberal virtues.Footnote 7 While such an assumption may explain why the unmaking of empire is rarely discussed within the transitional justice framework, the East Asian case explored in this essay directs us to a different dynamic. Instead of transitional justice in the move from empire to nation-state, the unmaking of empire produced transitional injustice, etching evasions of imperial accountability into legal, economic, and diplomatic structures and leaving victims of imperial violence unredressable for decades after empire’s end.
As I demonstrate in the following pages, the lawsuits brought to light how the entwined processes of de-imperialization and de-colonization produced a politics of abandonment, which placed certain populations outside the purview of accountability for decades in both former perpetrator and victim nations, while enabling the former perpetrators, yet again, to acquire unjust gain at the expense of redressing the victims. Instead of redressing the past wrongs, debt, moral and monetary, kept accruing over decades.
Through the lens of transitional injustice, this essay makes visible the mechanisms for the evasion of imperial accountability baked into these transitions. It allows us to see, furthermore, how recent demands for belated imperial reckoning are challenging this lack of accountability, not only for imperial violence but also for the accrued debt incurred through the unmaking of empire. I explore how new moral and legal landscapes in East Asia expand the scope and agency of accountability, raising the stakes for current generations to come to terms with unaccounted-for legacies of imperial violence, and invite new conversations on reparations for slavery and colonial debts.
Between the Law
Zhao Zhongyi, a frail man in his eighties and one of the slave labor survivors, emerged out of a dark room that resembled a cave when I visited him on the outskirts of Beijing in July 2008, immediately after his trip to the privately run Jianchuan Museum, a cluster of museums in Chengdu established in 2004 by a local millionaire, Fan Jianchuan, with one of its aims the memorialization of the Second Sino-Japanese War (1937–1945). Zhao was one of five survivors who were invited to the museum as guests of honor to mark the opening of the exhibit on Imperial Japan’s enslavement of Chinese men, the first such exhibit in China to portray their ordeals. Not only in Japan but also in China, their experiences have long been unaccounted for despite the systematic nature and large scale of the enslavement that took place in Japan and on an even larger scale in Northeast China in the Japanese puppet state Manchukuo.
Each of the ailing survivors received a triumphant souvenir picture taken at the museum portraying them standing among life-size statues of significant political figures of the Chinese Communist Party. They treasured these photos as belated public recognition of their own roles in Chinese history, albeit in a privately owned museum. Zhao lived in abject poverty, in a small one-room shack where a flickering ceiling light dimly illuminated the otherwise dark room with its crumbling walls patched with old newspaper. The contrast between the picture taken at the museum and his living conditions on the margins of Chinese society well on the path to becoming the world’s largest economic power epitomizes the place in China of these survivors of Japanese imperial violence.
Zhao is among the few present-day survivors of nearly 42,000 Chinese men, mostly from rural China, abducted and shipped to wartime Japan in the 1940s to work in mines, construction sites, and shipyards for brand-name Japanese corporations. Zhao and others like him were captured in fields or in villages through the so-called rabbit hunt operation (usagi-gari sakusen), which took place with the cooperation of organizations in both China and Japan.Footnote 8 Those captured were sent to camps set up in Shandong and Hebei Provinces and then packed into the hold of coal cargo ships to be trafficked to wartime Japan. The conditions at these camps were so deplorable that many Chinese died even before being shipped to Japan. Upon arriving in Japan, they were allocated to 135 corporate sites deemed essential for Japan’s war effort. Their systematic capture, enslavement, and subjection to brutal work and living conditions were orchestrated by the government to alleviate Japan’s significant labor shortage resulting from the conscription of Japanese men as war efforts deepened. One third of the Chinese men did not survive to see the Japanese defeat in 1945.Footnote 9
For Zhao and other aging Chinese survivors of slave labor like him, many of whom were impoverished and illiterate peasants from remote villages, standing before judges in Japanese courts was a remarkable achievement. The end of the Cold War had unleashed an upsurge of movements around the world to reckon with state violence through legal means, with victims’ voices in the spotlight—from Holocaust-related litigation to transitional justice projects in post-authoritarian, post-apartheid, or post-socialist societies.Footnote 10 Chinese survivors, however, had remained in isolation without access to what was unfolding elsewhere.
For decades, victims were isolated in their own communities and often subjected to political repercussions due to their unaccounted-for pasts. This included losing their jobs during China’s Anti-Rightist Campaign in the 1950s and coming under severe persecution during the Cultural Revolution in the 1960s and 1970s. Their wartime experiences in Japan were perceived by the public with suspicion, resulting in the attachment of the social label of “hanjian” (traitor), which came to haunt their families in the form of intergenerational pain, loss, and destitution.
It was a different story for a group of prominent Japanese human rights lawyers, who, one by one, came to an “embarrassing” realization, as many put it, that it had not occurred to them earlier to seek justice for victims of Japanese imperial violence. Morally burdened by a sense of indebtedness as Japanese, and inspired by Holocaust-related litigations,Footnote 11 the Japanese lawyers sought out survivors scattered in rural villages in China, a country then on the cusp of transition to a market-oriented society. Most survivors were living in abject poverty, many without running water or electricity, and struggling to feed themselves and their families. Like Zhao, most did not know the whereabouts of other survivors. Fearing discrimination in their own communities or having already suffered political repercussions for their unaccounted-for time in Japan, many held their traumatic experiences buried deep in their guts, their tight lips barely opening to tell their ordeals even to their own family members.
Meanwhile, the Japanese lawyers were driven by a newly discovered sense of purpose to redeem themselves and Japan through their pro bono work, against a backdrop of rising nationalism and revisionist history within Japan, which in turn ignited anti-Japanese public demonstrations across Asia.Footnote 12 They made numerous trips to China, and, one by one, convinced skeptical survivors to take part in a series of collective lawsuits in Japan. The group quickly grew to over three hundred lawyers of all ages––ranging from newly minted attorneys to the generation that experienced Japanese imperialism, but predominantly from generations born after 1945. They soon joined in coalition with thousands of seasoned grassroots activists across Japan, who for decades had attempted to reckon with Japanese imperial violence through repatriation of the remains of perished slave laborers, abandoned and decaying at sites of enslavement, and through annual commemorative activities.Footnote 13 These activists played the role of barefoot historians, collecting pieces of historical evidence neglected by professional historians. Together, the lawyers and activists launched nationwide legal redress movements, and they made survivors’ voices heard inside and outside the courtroom.
The arduous processes of preparing testimonies in court slowly transformed the Chinese survivors into the figures of victims and plaintiffs.Footnote 14 In the beginning, their attempts to express unspeakable ordeals produced fragmented words punctuated by long pauses, which were then woven into phrases and sentences with encouragement by the lawyers through repeated question-and-answer sessions over hours and days. Bit by bit, faint contours of horror, desperations, agony, and lasting pain started to take shape in and through language, and, slowly, narratives emerged out of their mouths. Bit by bit, eyes that had been cast downwards started to occasionally meet the eyes of their eager listeners, albeit hesitantly. Eventually, the survivors traveled thousands of miles over multiple days to testify in front of Japanese judges, lawyers, and citizen supporters who packed courtrooms across Japan. They came to narrate their stories again and again to the media, in public symposiums, during street demonstrations, and in meetings with Japanese politicians.Footnote 15
Throughout, the survivors-turned-plaintiffs held high hopes for the court’s ability to deliver justice, using such expressions as “Japan is a democratic society with a rule of law, unlike China.” Their faith and expectation in the Japanese legal system were amplified by their growing admiration and trust for the Japanese lawyers, who had extended their hands to the survivors as no one else had. Yet, seeking belated justice in jurisdictions of the former perpetrators was anything but simple. The legal process dragged on for over a decade, moving slowly all the way to the Supreme Court, and, along the way, exposing law’s troubled relationship to belated imperial reckoning.
The courts successively deployed legal doctrines––statute of limitations, sovereign immunity, and the rejection of individual legal rights to claim compensation––that resulted in the rejection of victims’ claims in most of the cases. When the slave labor cases reached the Japanese Supreme Court in 2007, their decision epitomized the judiciary’s discordant relationship to the role of law in imperial reckoning.Footnote 16 Even as the justices argued that the Chinese victims had lost the legal right to seek compensation and denied their claims, they nevertheless emphasized in strong language that the Chinese victims deserved redress and urged the involved parties to settle out of court. This was a striking admission of the judiciary’s inadequacy to deliver justice, despite publicly acknowledging Japan’s need to repay moral and monetary debts to the Chinese.
Legal commentaries on the 2007 Japanese Supreme Court decision tend to blame the lack of political will for the disappointing decision for the Chinese victims.Footnote 17 While political will was indeed lacking, an exclusive focus on it overlooks the underlying mechanisms that produced the discordance expressed by the judiciary––not only in the 2007 Supreme Court decision but also in a notable number of lower court decisions, in which the judges expressed in strong and emotionally-charged language their disappointment at their inability to deliver justice they saw was overdue. The judges expressed their sentiments in closing sections of their ruling, known within the Japanese legal lexicon as fugen, or supplement, which is often considered an extra-legal space.
For example, Judge Yanobe Masahira in the Hiroshima Regional Court concluded his ruling in 2002: “It is not difficult to imagine how deeply disappointed the victims must feel, especially considering how they had been prevented from exercising their rights to pursue justice for many years. Regrettably, legally speaking, the defendant’s legal responsibility has expired. Yet, even when the legal responsibility no longer exists, there is no reason to assume that moral responsibility disappeared as well.”Footnote 18 Judge Tsuji Jiro in the Nagano Regional Court orally stated in 2006 in closing his deliberation of the decision: “First of all, I would like to apologize that it took eight years since you filed the lawsuits to get to this ruling. Secondly, I regret and apologize for not being able to reach a settlement. I belong to the generation that is marked by the 1960s student protest movement. To be honest, I feel that the previous generation did terrible things. … This is one of these cases that I so wish to let the plaintiffs win the case. But there are times when that cannot be done. I personally struggled with this situation and feel tormented by it.”Footnote 19 Judge Tokuoka Yumiko in Miyazaki Regional Court summed up the ruling in 2007: “It is hard to overturn the fact that the statute of limitations has expired the defendant’s legal responsibility. Yet, the historical fact of forced labor remains, and we cannot forget the physical and psychological agony and pain that the Chinese plaintiffs endured in a foreign land away from their families and their home country. We should never forget the historical weight of this tragedy. Given the historical facts that this court found, I would like to conclude this case with the expectation that we make efforts to redress this issue conscientiously in order to fulfill our moral and humanitarian responsibilities.”Footnote 20
Given the prevalence of these pronouncements, I suggest that we take seriously the tension expressed through these moral sentiments, which nevertheless could not be conveyed in the main body of the decision and instead were tacked on as fugen, the supplement. What does this gap between the judiciary’s desire to deliver justice and their inability to do so within the legal realm shed light on?
In Franz Kafka’s parable “Before the Law,” a man from the countryside awaits admittance to the Law in front of the gate of law. The countryman assumes that “the Law should be accessible to anyone at all times.” Yet, his access to the Law remains elusive, as the doorkeeper at the gate tells him to just wait and indicates more gates to follow even if the man enters this gate against the doorkeeper’s advice. Time passes, and now, at the end of his life, he asks the doorkeeper why, after all these years, he has yet to see anyone else pass the gate. To this, the doorkeeper divulges, “No one else could gain admittance here, because this entrance was meant solely for you. I’m going to go and shut it now.”Footnote 21
Kafka’s parable captures the conundrum of the legal landscape for belated imperial reckoning, which entails navigating multiple gates in the form of varying jurisdictions and temporalities that span decades, complicating the idea of the rule of law in practice. The rule of law conjures an image of a homogeneous legal space that promises universal application of law for all, and this is certainly the image that the Chinese plaintiffs held when they stood before the Japanese judges. And yet, the legal space that the Chinese plaintiffs entered when they crossed into Japanese jurisdiction revealed instead a complex terrain with gaps, folds, and voids created by post-imperial, postcolonial, and post-war entanglements in East Asia, which results in the Law remaining elusive even after they finally gathered up all their courage and entered the gate. Instead of a legal landscape that universally applies to all, the Chinese plaintiffs found a transnational legal landscape unique to them, with actions, inactions, and abandonment by both perpetrator and victim states inscribed in it over decades to effectively limit their access to the Law.
As I have explored elsewhere, the legal doctrines deployed by the courts to reject the victims’ claims led the Chinese plaintiffs to stand effectively not “before the law,” as they had expected when they stood before the Japanese judges, but in a legal lacuna that I call between the law. Footnote 22 The statute of limitations stipulated that the Chinese plaintiffs arrived before the law too late, as the twenty-year period had run out when they filed the lawsuits in the 1990s, more than half a century after the war’s end. The invocation of the sovereign immunity doctrine (kokka mutōseki, literally: the state does not respond to calls for responsibility), rejected in the post-1945 Japanese legal system but practiced in the imperial Japanese legal system, effectively places the plaintiffs before the now-extinct imperial law rather than the existing Japanese law in the present. The rejection of individual legal rights to claim compensation, as a result of the People’s Republic of China’s (PRC) renunciation of reparation claims against Japan in 1972 when the two countries established diplomatic relations, denies the plaintiffs’ legal standing within Japanese jurisdiction, locating them outside the purview of legal accountability.
Between the law captures how these legal doctrines effectively defy the assumed presence of law by suspending the plaintiffs between imperial and post-imperial Japanese legal systems (a temporal zone of legal abandonment) and between Chinese and Japanese legal systems (a geographical zone of legal abandonment), leaving them effectively unredressable. The gate of law was open, yet the Law that the Chinese plaintiffs had expected to find as they went through the gate remained elusive to the point of receding. Between the law is an optic that allows us to access the uneven terrain of legal space that embodies temporal and spatial disjuncture, rupture, and asymmetry.
What historical constellations brought about this condition of between the law, despite the Japanese judiciary’s desire to bring justice? The answer resides, I suggest, in the underexplored intersection of legal, economic, and diplomatic structures that enabled the evasion of imperial accountability. It is at this intersection where we see how the legal lacuna reflects the institutional memory: the abandonment of former colonial and imperial subjects in the processes of the unmaking of the Japanese Empire. We shall now turn to these historical constellations, which the lawsuits exposed as the crux of belated imperial reckoning.
Transitional Injustice
When the Japanese defeat in the Second World War resulted in the abrupt collapse of the Japanese Empire, war tribunals, such as the Tokyo War Crimes Tribunal, became the primary venues for articulating justice at the moment of transition. Yet, while these tribunals addressed Japanese war crimes, they notably left imperial violence unaccounted for, casting deep shadows over how such crimes were defined, interpreted, and adjudicated as the Cold War and de-colonization movements gathered momentum.Footnote 23 Geopolitical developments after the demise of the Japanese empire played important roles in shaping whose losses and injuries were addressed and redressed. “Geography of injustice,” as Barak Kushner puts it, was created through the entangled development of war tribunals, European attempts at recolonizing Asian societies, redrawing geographical boundaries through decolonization movements, and the emergence of the USSR and the United States as superpowers.Footnote 24 The tribunals were framed as post-war justice to account for war crimes, not as post-imperial transitional justice to account for imperial violence.Footnote 25 As Lisa Yoneyama demonstrates through her analysis of trans-Pacific relations, historical developments at the crossroads of the demise of the Japanese Empire and the rise of American hegemony in the region led to a regime of knowledge production that continues to deem certain violence legible while leaving other forms of violence and victims unredressable.Footnote 26
The evasion of imperial accountability inscribed in the Tokyo Tribunal was reinforced through a parallel evasion in the class BC war tribunals held in mainland China and Taiwan to prosecute conventional war crimes and crimes against humanity. Two Chinas vying for international legitimacy led to what Kushner describes as PRC’s magnanimous attitude toward the Japanese, since the Chinese Communist Party wanted to emphasize their adherence to the rule of law as expressed through the tribunals, even if this meant eclipsing the pursuit of imperial accountability from Japan.Footnote 27 As a result, Asian victims of Japanese imperial violence became socially invisible while the postwar Japanese discourse of “newborn Japan” stressed Japanese victimhood through a narrative emphasis on the atomic bombs, air raids, and the U.S. occupation.Footnote 28 It led to what can be called inverted victimhood: Asian victims of Japanese imperial violence became socially invisible while Japanese victimhood became highlighted.Footnote 29
While much attention has been paid to the tribunals in defining the post-1945 moral landscape, the lawsuits since the 1990s exposed other forms of transitional injustice, which have come to reverberate far more than the war tribunals for belated attempts to address imperial accountability through legal means today. The legal cases brought to light two critical moments of transition after the end of the empire that, instead of settling accounts, became sites for the evasion of imperial accountability and unjust wealth accumulation: the first arose in Japan’s transition from an empire to nation-state in 1945, and the second in the establishment of diplomatic relations between Japan and the PRC in 1972.
These two critical moments played a key role in the courtroom dramas, which revealed how opportunities for transitional justice had turned instead into drivers for transitional injustice. The legal arguments that unfolded through the lawsuits illuminated three forms of transitional injustice that I call law’s imperial amnesia, inverted compensation, and (for)given time. These illustrate a range of transitional injustice, from law’s imperial amnesia as a byproduct of the celebrated Japanese Constitution, to the usurping of the transition by inverted compensation to the perpetrators, to prioritizing reconciliation over redress at the expense of abandoning huge populations disproportionately affected by imperial violence through the diplomatic structure that I call (for)given time. While I have discussed these practices of evading imperial accountability separately,Footnote 30 in this article, I bring them together through the lens of transitional injustice to illuminate how these seemingly disparate historical processes in fact form an integral and key dynamic in the unmaking of empire.
These three forms of transitional injustice make visible a politics of abandonment across legal, economic, and diplomatic spheres, which made the survivors of Japanese imperial violence unredressable while, at the same time, enabling postwar prosperity to rest upon unjust gain at the expense of redressing individual victims. As we shall see, the story of transitional injustice presents a different historical picture from the widely shared post-1945 narrative of Japan, in which reconstruction, recovery, and prosperity are built on hard work and innovation.
Law’s Imperial Amnesia
The first form of transitional injustice concerns the Chinese plaintiffs’ legal right to seek compensation from the Japanese state for its actions, an argument used to reject the victims’ claims in the 2007 Supreme Court decision as well as lower court decisions. What I call law’s imperial amnesia refers to the way in which former colonial and imperial subjects were literally excised from the draft of the new and democratic Japanese Constitution, a symbol of Japan’s transition from a fascistic imperial state to a democratic nation-state, after the Japanese defeat in the Second World War. Going against the widely perceived image of this constitution as one of the most celebrated manifestations of transitional justice, law’s imperial amnesia points to the evasion of imperial accountability inscribed onto the post-imperial legal landscape that emerged through this tectonic shift.
The drafting process of the Constitution took place under the U.S.-led Allied occupation, with the General Headquarters providing the English-language draft constitution, which then went through multiple revisions between the American and Japanese teams behind closed doors.Footnote 31 In the final revision, the Japanese team changed the wording in the Japanese translation so that former colonial and imperial subjects had no legal right to hold the Japanese state accountable.Footnote 32 While “amnesia” may sound like a wrong term for such purposeful erasure and forgetting of empire, the final constitutional text erases this elision at its founding moment, making the Japanese public amnestic about this transitional injustice that took place before its enactment.
Law’s imperial amnesia thus draws attention to this elision etched into Japan’s legal rebirth at the moment of its transition from an empire to a democratic nation-state. It captures how voids created by post-imperial transition in the legal sphere place certain populations outside the purview of accountability, where the Law does not reach. It is a form of foundational violence that becomes “invisible” to the public at the founding moment, whose inscription deep into the legal structure nevertheless carries its influence over decades and generations.Footnote 33
This hidden erasure matters today when the Chinese victims find themselves excluded from the legal right to hold the Japanese state accountable for its actions, a right defined in the Japanese Constitution and stipulated in the State Redress Act (kokka baishō hō), both enacted in 1947. As in Kafka’s fable, the gate was open to the Chinese plaintiffs, but it was a gate unique to them. Even though the plaintiffs made it inside the gate, however, the Law was not to be found. Law’s imperial amnesia, I argue, is one of the key forms of transitional injustice that contribute to the condition of between the law today.Footnote 34
Inverted Compensation
Whereas law’s imperial amnesia brings to light the role of law in the evasion of imperial accountability, the practice of inverted compensation epitomizes unjust gain and accrued debts in the economic sphere, at the expense of the victims’ redressal. It refers to large sums of monetary compensation that the Japanese government paid in 1946 not to the Chinese victims but to Japanese companies for the loss of their slave laborers at the war’s end. This was in stark contrast to the unpaid wages and compensation to the victims, who were sent back to civil war-torn China without a penny. Instead of settling accounts, the transition became an opportunity for the former perpetrators to acquire even more unjust gain.
This inversion of the common sense logic of compensation for victims was revealed in 2000 by a dramatic appearance of hidden Japanese government archives through a spectacular courtroom drama.Footnote 35 These archives, consisting of thousands of handwritten pages, not only detail the use of slave labor at each corporate site but also list the compensation that involved corporations received from the Japanese government.Footnote 36 This compensation to the former perpetrators enabled the implicated Japanese corporations––mostly brand name corporations such as Mitsubishi and Mitsui, to name a few––to build even more wealth upon the original benefit of engaging in the slave labor practice while the occupying U.S. looked away at the advent of the Cold War.
Totaling a huge sum for the time of 57 million Japanese yen,Footnote 37 this inverted compensation contributed to the Japanese economy’s rapid recovery from the devastation of the war, which is often attributed to Japanese work ethics of diligence and hard work. Through the lens of transitional injustice, a different narration of this postwar recovery and prosperity emerges, one built on the debt to the victimized.Footnote 38 Inverted compensation is an exemplary manifestation of accrued debt that calls for accounting today along with the original violence of forced migration and enslavement.
The story of inverted compensation directs us to situate the Japanese use of slave labor in East Asia in comparison with a parallel inverted compensation in Britain: a total of 20 million pounds sterling paid to slave owners when colonial slavery was abolished in 1833.Footnote 39 Similarly, France demanded a 150 million franc indemnity from newly independent Haiti in 1825 for the loss of property including slaves.Footnote 40 Potential opportunities for transitional justice at the moment of redefining empires and their (former) colonies often resulted in instituting transitional injustice. Reflecting on the recent surge of demands for slavery reparations in the Caribbean, set against the background of the mounting debt of the postcolonial Caribbean, David Scott encapsulates the predicaments created through parallel inversions in this manner: “Caribbean debt is the other side of European theft.”Footnote 41
Yet, theft is not always recognized as theft. Short of acknowledging damages incurred through imperial violence, even rarer is for the beneficiary of this inversion to acknowledge inverted compensation as an inversion, a theft. To make the matter even more complicated, as Scott observes, such recognition was long lacking from not only European imperial powers but also postcolonial states. If transitional injustice and ensuing economic and legal structures naturalize the inversion through which imperial theft becomes postcolonial society’s debt, then it is important to elucidate the mechanisms of such naturalization and to explicate how the inversion eventually comes to be recognized as post-imperial debt/theft.
What is notable about the 2007 Japanese Supreme Court decision is its official acknowledgment that both the slave labor practices and the compensation that Japanese corporations received are unjust gain that adds to Japan’s accrued debt and must be repaid. In fugen (supplement), in the closing section of the ruling, the justices used strong language to emphasize the suffering the plaintiffs endured not only during the war but also over the ensuing years, noting the “tremendous psychological and physical agonies that the victims endured.” They contrasted the plaintiffs’ suffering with the economic benefits that the defendant, Nishimatsu Construction, enjoyed through their wartime use of slave labor. More importantly, they pointedly called attention to the “considerable gains” that accrued to the corporation, which they referred to as the “debtor” (saimusha), through forced labor under hellish conditions and the compensation Nishimatsu received from the Japanese government after the war’s end. While the justices emphasized they had “no choice to concede” that the victims could not legally seek compensation through court, they nonetheless “expect” that the corporation “and other implicated parties (kankeisha)” make “efforts to redress the victims” through “voluntary arrangements.”Footnote 42
Coming from the highest office in the judiciary, this recognition of debt as debt/theft is significant, and this ruling eventually led to out-of-court settlements in 2009 and 2010 with the defendant, Nishimatsu Construction. On 23 September 2009, Nishimatsu agreed to pay 250 million Japanese yen to 360 Chinese men who were enslaved at the Yasuno power plant in Hiroshima, and on 26 April 2010, to pay 128 million Japanese yen to 183 Chinese enslaved at the Shinanogawa power plant in Nīgata. Justice Imai Isao, one of the three Supreme Court justices for the 2007 Supreme Court case, later expressed to the Chinese victims’ lawyer how pleased he was to see that fugen he and his fellow justices wrote came to fruition in the form of out-of-court settlements. It is also important to note how long it took––over six decades––for the Japanese public to be confronted with accrued debt through such official pronouncement.
Why and how did this inversion remain “invisible” to the public for decades? To answer this, we need to consider another form of transitional injustice.
(For)given Time
The lawsuits illuminated the third form of transitional injustice at another pivotal moment when Japan and the PRC established diplomatic relations in 1972 after twenty-seven Cold War years. At this arguably zero hour of Sino-Japanese relations after the empire’s demise, the Japanese evasion of imperial accountability in the economic and legal spheres became corroborated through a diplomatic structure that I call (for)given time, in which Japan was not forgiven but given time by China to prove its repentance and remorse through future actions as a good neighbor and, most of all, a good economic partner at a time when Chinese society was still in the midst of the turmoil of Cultural Revolution. Instead of demanding reparations from Japan, the Chinese government sought economic development packages.
The Chinese renunciation of reparation claims in the Joint Communiqué of the Government of Japan and the Government of the People’s Republic of China was prefaced by and framed within the proclamation of Japanese responsibility for Chinese losses sustained during the war, effectively presenting China’s waiver as a generous gift to Japan. The preamble of the Communiqué states that “[t]he Japanese side is keenly conscious of the responsibility for the serious damage that Japan caused in the past to the Chinese people through war, and deeply reproaches itself.” Having said that, article five of the Communiqué reads: “The Government of the People’s Republic of China declares that in the interest of the friendship between the Chinese and the Japanese peoples, it renounces its demand for war reparation from Japan.” By linking its renunciation of reparation claims to the promise of good deeds in the future (“in the interest of the friendship between the Chinese and the Japanese peoples”), the Chinese side expresses its expectation for reciprocity from Japan, in the form of a return gift of “friendship” built on a “deep” sense of repentance.
Accrued debts were thus repackaged into development projects, through a combination of loan aid, grant aid, and technical cooperation. (For)given time prioritized the wealth of the nation over compensating individual victims and led to the Chinese government effectively preventing its citizens from bringing lawsuits against the Japanese government or companies within Chinese courts to seek redress for imperial violence. As a result, individual victims were placed outside of the purview of accountability by not only the Japanese but also the PRC government. This resulted in the 2007 decision where the judges denied the legal rights of the Chinese plaintiffs and rejected their claims by invoking this 1972 renunciation of reparation claims by the Chinese government.
The signing of a bilateral treaty to establish diplomatic relations––an integral part of the unmaking of empire––is an underexplored site of transitional (in)justice, through which accrued debts are repackaged into development projects and survivors of imperial violence are placed between the law. By prioritizing the wealth of nations over compensating individual victims and reckoning with imperial violence, the 1972 Joint Communiqué between Japan and the PRC cemented the politics of abandonment in the region, where individual victims of Japanese imperial violence such as survivors of slave labor were left in social obscurity not only in the former perpetrator nation but also in the victim nation, while Chinese and Japanese companies benefited from Japanese economic packages to invest in joint ventures in China.
Even after the legal cases were filed within Japanese jurisdictions since the 1990s, the Chinese state discouraged its own citizens from pursuing justice from Japan within Chinese jurisdictions. The Chinese courts in various provinces had refused to accept five attempts by the survivors to file compensation lawsuits until February 2014, when the Beijing No. 1 Intermediate People’s Court decided to accept a slave labor case.Footnote 43 In one of these failed cases involving a prominent Japanese corporation, the lead Chinese lawyer and the leading figures among the plaintiffs were browbeaten by a high-ranking local government official, who expressed strong concerns that such a lawsuit would jeopardize ongoing negotiations with the corporation to invest in the region.
The Japanese government had arranged a parallel diplomatic agreement with the South Korean government in 1965 when they signed the Treaty on Basic Relations to establish diplomatic relations.Footnote 44 Under the military dictatorship of Park Chung-hee (who had served as an officer in the Imperial Army of Manchukuo under the Japanese rule), the South Korean government renounced reparation claims against Japan and instead received economic development packages from its former colonizer. Similar to their counterparts in China, South Korean survivors, who had been enslaved by Japanese corporations or by the Imperial Japanese Army as sexual slaves, sought belated justice within Japanese jurisdiction since the South Korean courts closed their doors to them.
As a result, transitional injustice in East Asia in economic and legal realms became largely invisible to the public, only to be made visible as it came to play a critical role in the legal cases since the 1990s. Not dissimilar to how many newly independent postcolonial states elsewhere in the world opted for similar arrangements with their former colonial powers, the diplomatic framework of (for)given time has silenced individual victims and left imperial violence unaccounted for while prioritizing restoring the economy of the nation. What David Scott calls European theft was an integral part of gift economies that newly independent postcolonial states took part in, willingly or unwillingly, only to haunt both post-imperial and postcolonial societies decades later, as we have witnessed globally in the recent upsurge of demands for redress for imperial violence and accrued debts.Footnote 45
The lawsuits thus revealed how key moments in the transition from the Japanese Empire to the democratic nation-state were not only missed opportunities for transitional justice but actively became drivers of transitional injustice. The lens of transitional injustice illuminates a long arc of transitional justice that follows the prolonged and entwined processes of the unmaking of empire, starting with the empire’s demise all the way to today.
The transitional injustice that I illustrate through these three forms suggests that the unmaking of empire has, at its very core, the evasion of imperial accountability. Rather than settling accounts, the entangled processes of de-imperialization and de-colonization have given rise to a politics of abandonment, leaving certain populations unredressable. Accounting for Japanese imperial violence thus necessarily involves post-imperial reckoning to account not only for the original violence, but also for the politics of abandonment after empire.
In Imperial Reckoning, Caroline Elkins uncovers the long-silenced history of the violent suppression, detention, and torture of the Mau Mau freedom fighters in colonial Kenya under British rule. Her groundbreaking book re-narrates the historical injustice and violence that took place during the colonial era, only hinting in the epilogue at the dynamics that enabled the British government’s erasure of this history, including the role of the post-independence Kenyan government in silencing the violence. I share her concern with the erasure of history but focus on what happens after the violence ended: I call attention to post-imperial reckoning as a critical aspect of reckoning with the deeds of empire.
Attempts in East Asia over the years to reckon with imperial Japan’s brutal violence have been discussed primarily within the framework of postwar justice and are often contrasted with Germany’s perceived success in coming to terms with the Holocaust.Footnote 46 Following the German model of redress,Footnote 47 the idea of reckoning in East Asia has revolved primarily around the repentance of the former perpetrator through apology and compensation.Footnote 48 This model of redress assumes that the object of repentance and the agency of reckoning are self-evident, and that the problematic past is, in fact, past.
Yet, reframing these reckoning attempts as post-imperial redress compels us to reconsider these assumptions beneath this model of redress. Not only does the postwar framework leave out imperial and colonial violence, which cannot be fully reduced to wartime violence, but also transitional injustice incurred through the unmaking of empire leaves certain forms of violence and victims invisible and unredressable. In addition to the original violence committed in the name of the Japanese Empire, what also needs to be accounted for are the decades of silence maintained by many victims. This includes accounting for actions and inactions of not only the former perpetrators but also the broader perpetrator and victim societies. By illuminating the question of complicity and implication, which unsettles the expected victim-perpetrator binary, the legal redress movement thus expands the scope and historical agency of reckoning.
In so doing, it sheds new light on how and why it matters for contemporary societies to reckon with seemingly distant violence by bringing to the fore the stakes for “postgenerations,” those born after the original violence ended with the demise of the Japanese empire.Footnote 49 Debt continues to accrue and implicates contemporary societies in the violence that took place generations ago.
In a larger global context, debt has become a key conceptual tool to articulate the lasting legacies of imperialism, colonialism, and slavery. From discussions on what White America owes to African Americans and Native Americans to reframing national debts owed by postcolonial states to their former imperial powers as European theft, evoking the lens of debt offers an alternative understanding of who owes what to whom.Footnote 50
Reframed in the language of theft, these discussions are part of larger conversations about how and why contemporary societies need to confront historical violence and its lasting legacies and how to articulate historical accountability of postgenerations, a task that calls for going beyond the victim-perpetrator binary. Concepts such as “the beneficiary” and “the implicated subject” capture the historical agency of postgenerations by making visible linkages to the violence that may appear distant in time and/or space.
Through the concept of beneficiaries, for example, Robert Meister argues for the need to shift our focus from victims’ losses to a “gain-based approach” for reparatory justice for historical violence. He illuminates unjustly acquired benefits enjoyed by segments of post-transitional society.Footnote 51 Meister calls attention to the gap between the formal end of the “evil” and the deferred arrival of justice, arguing that this temporal gap enables the beneficiaries to acquire unjust gains as a result of incomplete transitional justice.Footnote 52 His suggestion to shift our attention from victims to beneficiaries invites new articulations of historical agency and attendant responsibilities.
Building on Meister’s concept of beneficiaries, Michael Rothberg introduces the figure of the “implicated subject” to capture a broader understanding of the injustices inflicted on others across time and space, which cannot be captured through concepts such as perpetrators or bystanders.Footnote 53 Through the lens of implication, Rothberg confronts the gray zone of what Hannah Arendt called collective responsibility to address the long shadow cast by historical violence in the present.Footnote 54
These attempts to name those who reside in the gray zone between victimization and perpetration reflect a realization that making visible the losses of long forgotten victims (one of the key goals of transitional justice) is not enough to challenge the structural evasion of accountability. It is equally necessary to make visible unjust gains incurred at the expense of victims’ redress. I use the concept of transitional injustice to illuminate the systematic mechanisms behind the temporal deferral that enables the accrual of unjust gain.
Yet, it is one thing to show how certain segments of society owe their privilege and wealth to other segments of society as a result of unaccounted-for historical violence. It is another for such an understanding to be channeled into political action that questions the foundational structures through which debt accrues. The latest development in East Asia signals the implications of these revelations, which are now unsettling the region at a magnitude beyond anyone’s imagination when the lawsuits started.Footnote 55
New Legal Frontier
In Franz Kafka’s parable “Before the Law,” the countryman eventually dies while waiting to go through the gate to stand in front of the law. This may well be the image that guides the Japanese government in their persistent deferral of the arrival of legal justice. They might be hoping that the last surviving witnesses will eventually die in front of the gate.
To many observers, the 2007 Japanese Supreme Court decision that rejected Chinese slave labor victims’ claims for official apology and monetary compensation marked an end to the legal redress movement’s efforts to account for Japanese imperial violence in court, because the ruling foreclosed not only ongoing cases filed by other Chinese victims but also scores of parallel cases filed by South Korean victims. And yet, just a few years after the 2007 decision, the gate of law opened for South Korean and Chinese victims of Japanese imperial violence to seek legal redress within their home countries. This jurisdictional shift from the perpetrator nation (Japan) to the victim nations (South Korea and China) signals a new chapter in post-imperial reckoning in East Asia, with new stakes for the postgenerations, who are confronted with post-imperial and postcolonial entanglements, now laid bare. What happened in Japanese courts, it turns out, is not the end of the story.
In a landmark decision by the South Korean Constitutional Court in 2011, the court found it unconstitutional for the South Korean government to prohibit its own citizens from seeking compensation claims against Japan within Korean jurisdiction, and the Supreme Court of Korea on 24 May 2012 recognized the individual right to claim compensation from Japan.Footnote 56 Since then, Korean victims, who similarly to the Chinese had also lost in slave labor cases filed in Japan, brought and won cases in the South Korean courts, with over sixty other cases to come. A different gate of law is now open to South Korean victims in their home country, allowing them to stand before the law.Footnote 57 This development in South Korea spurred renewed interest among Chinese victims, lawyers, and activists to seek legal redress within Chinese jurisdiction after decades of state suppression of such attempts, including sending thugs to intimidate victim leaders and Chinese lawyers. Responding to domestic pressure in the wake of the South Korean cases, in 2014, a Beijing No.1 Intermediate People’s Court officially accepted a slave labor lawsuit against Mitsubishi Materials and Mitsui Mining.
With this shift of the legal frontier to the jurisdiction of victims, the 2007 Japanese Supreme Court decision is thus not the end of the legal redress movement in East Asia, as many had suggested. On 30 October 2018, the South Korean Supreme Court ordered a leading Japanese steel company, Nippon Steel & Sumitomo Metal Corporation, to pay 100 million won (USD $87,000) to each of the four South Korean plaintiffs for slave labor.Footnote 58 This decision is a watershed moment in the decades-long transnational legal redress movement in East Asia. Less than a month later, on 29 November 2018, the same court ordered Mitsubishi Heavy Industries to pay compensation to five plaintiffs enslaved in Hiroshima and another five in Nagoya.Footnote 59
At first glance, it may appear that, through this jurisdictional shift, the transnational legal redress movement has finally achieved a form of justice that they had sought for over three decades, defying the 2007 Japanese Supreme Court decision that rejected the victims’ claims. Yet, far from giving a sense of closure, these new developments are exposing a new terrain of historical accountability, with implications far beyond the responsibilities of the Japanese government and corporations alone.
By highlighting how South Korean and Chinese courts had previously refused to hear their cases for decades, the jurisdictional shift to victim nations ironically makes public how the victim nations had been complicit in silencing the victims. Like the Chinese government in 1972, the South Korean government in 1965 had renounced reparation claims from Japan in exchange for development assistance and economic cooperation. Today’s regional conflicts over the “history problem” can be traced significantly to how East Asian states prioritized economic recovery and development while actively avoiding dealing with their complex pasts. In this historical context, the newly emerging legal frontier in victim jurisdictions signals a sharp turning point not only for Japan’s post-imperial reckoning but also for South Korean and Chinese postcolonial reckoning.
These recent developments in South Korea are unsettling the entire region at a magnitude unseen in recent years, whose reverberation is yet to be known. The South Korean Supreme Court rulings on the slave labor cases, along with anticipated rulings on sixty other cases, are pressuring not only the Japanese but also the South Korean and Chinese governments to reconsider their long-held positions that they had renounced reparation claims against Japan through the diplomatic structure of (for)given time. Business communities are also scrambling to gauge this new development, while victims of Japanese imperial violence in both South Korea and China are invigorated by this ruling—not only those who participated in lawsuits filed within Japan in the past decades, but also those who had never considered such recourse until now.
For example, South Korean corporations that benefited from the 1965 economic development package from Japan, in lieu of compensation for individual victims, are now implicated in the deferred imperial reckoning, and some in South Korea demand that these Korean corporations join the Japanese in paying compensation. South Korean victims have filed lawsuits against the South Korean government for having prevented them for decades from pursuing redress within South Korean jurisdiction. The former chief justice of the South Korean Supreme Court was arrested in January 2019 for delaying the processing of the slave labor cases filed since 2012 at the request of then President Park Geun-hye, the daughter of Park Chung-hee, the former President and a collaborator with Imperial Japan who signed the 1965 Treaty with Japan.
Meanwhile, a political impasse between South Korea and Japan ensued. Nippon Steel & Sumitomo Metal Corporation, the implicated Japanese corporation in the 2018 Korean Supreme Court decision, as well as the Japanese government refuse to acknowledge the court decision and the court orders to seize the company’s assets within South Korea. In March 2023, the South Korean government, then led by President Yoon Suk Yeol, who was eager to amend ever-strained Korea-Japan relations, proposed using a third-party foundation in South Korea, the Foundation for Victims of Forced Mobilization by Imperial Japan, to solicit donations from South Korean and Japanese corporations for disbursement of compensation to victims. One of the largest steel companies in South Korea, Posco (Pohang Iron and Steel Company), immediately committed to donating 4 billion won (USD $3 million) to the foundation. Posco’s involvement in this diplomatic maneuvering reveals the entanglement of the Japanese evasion of imperial reckoning with Korean postcolonial reckoning that is the legacy of the diplomatic structure of (for)given time. Posco’s predecessor had been established under the aid package of the 1965 Basic Treaty between Japan and South Korea. To bring this full circle, Nippon Steel’s predecessor facilitated the technology transfer component of that development package.
On 8 January 2021, the Seoul Central Court ordered the Japanese government to pay 100 million won (USD $87,000) to each of the twelve plaintiffs in the comfort women case.Footnote 60 The judges rejected the Japanese government’s state immunity (shuken menjo) defense––that the Japanese state is exempt from being sued in the courts of other states––by arguing that the Japanese colonization of Korea (1910–45) was an illegal occupation.Footnote 61 By holding a foreign state accountable for its actions under its colonial rule, the implication of this ruling, upheld by the Seoul High Court on 23 November 2023, thus goes far beyond East Asia.Footnote 62 At the heart of legal discussions about this jurisdictional shift is the illegality of colonialism and colonial law. Long a point raised in scholarly circles by critical legal scholars in the Third World Approaches to International Law (TWAIL) movement,Footnote 63 this question is now at the center of over sixty open cases concerning slave labor and sexual slavery filed within South Korean jurisdictions. For the Korean bench to deem the Japanese colonization of Korea illegal and reject Japanese state immunity sets a historic international legal precedent while also controversially highlighting the complicity of the South Korean state and corporations in silencing victims. Acknowledging the significant ramification of this ruling, Moon Jae-in, then the South Korean President, commented on the ruling by stating that “honestly, I am perplexed.”Footnote 64
Meanwhile, watching how the recent events are opening a Pandora’s box in South Korea, the Chinese government is conspicuously quiet, and its own slave labor case, once “accepted” in a Beijing lower court in 2014, remains shelved indefinitely. Despite the lack of action within the Chinese court, however, the recent development in the Korean courts has energized the Chinese victims and their lawyers. The Chinese and Korean lawyers held meetings to compare notes, and the Chinese translation of the 2018 Korean Supreme Court decision on the slave labor case was submitted to the lower court as supporting material. The plaintiffs for the case filed in 2014 at the Beijing No. 1 Intermediate People’s Court grew from the original thirty-seven to over one hundred plaintiffs within a few years, and on 6 December 2016, twenty-seven victims enslaved by Kajima Construction filed a lawsuit at the Beijing No. 3 Intermediate People’s Court. Encouraged by the development in South Korea, the first comfort women case against the Japanese government was brought to the Shanxi Province High Court on 15 April and 17 April 2024, by the children of eighteen deceased comfort women. On 9 August 2024, eight survivors of wartime sexual slavery brought a case against the Japanese government to the Hunan Province High Court. The courts have yet to accept these cases, and, after initial reporting, the Chinese media has remained quiet since then.
The recent turn of events, in the form of a jurisdictional shift to victim nations, is thus calling into question the original moments of “settling accounts” in 1965 and 1972 that prioritized the wealth of nations over compensating individual victims. The transnational legal redress movement in East Asia has exposed how both the Japanese, Chinese, and South Korean states deployed formal economic rationality to evade imperial accountability. These historic developments and the ensuing new moral landscape are challenging transitional injustice, which had silenced the victims, enabled the evasion of imperial accountability, and allowed the accrual of unjust gain. In so doing, the new legal frontier has made bare the entangled processes of de-imperialization and de-colonization that led to decades of abandonment of the victims. The jurisdictional shift, therefore, demands a new accounting for inaction and abandonment in the legal, economic, and diplomatic spheres that has deferred imperial reckoning.
These new developments put East Asian cases at the forefront of a renewed reckoning through legal means between former empires and their colonies decades after the formal dissolution of empires. Until now, the cases involving former European imperial powers have taken place within the former perpetrator nation’s jurisdictions or third country jurisdictions such as U.S. courts—examples include the lawsuit filed in London in 2009 against the British government by the victims of the Kenyan Mau Mau Uprising; the case filed in the Hague in 2011 against the Dutch government by Indonesian victims of massacre during the de-colonization war; and the case filed in New York in 2017 against the German government by the Herero and Nama victims of colonial massacre. As belated legal redress reshapes relations between former empires and their colonies, the expanded scope of historical accountability in the victim jurisdictions in East Asia signals an emerging new frontier for post-imperial reckoning. The East Asian cases thus foreshadow the landscape of responsibility for the current generations, those of us who have no choice but to inherit losses incurred through imperialism, colonialism, and war.
Acknowledgments
I would like to thank Jatin Dua, the editor of CSSH and the anonymous reviewers, whose insightful comments greatly improved the article, and Lauren Kapsalakis, the managing editor of CSSH. Field research in China and Japan was made possible by the generosity of the Chinese plaintiffs, Japanese lawyers, Chinese lawyers, and advocates and activists who allowed the me to participate in and observe their involvement in the legal process. I also thank the National Endowment for the Humanities, Japan-U.S. Friendship Commission, Association for Asian Studies Northeast Asia Council as well as China and Inner Asia Council, Hunter College of the City University of New York, and Yale University for their financial support for field research in China, South Korea, and Japan. Any views, findings, conclusions, or recommendations expressed in this article do not necessarily reflect those of the National Endowment for the Humanities or the Japan-U.S. Friendship Commission, or those of the Association for Asian Studies. I am grateful to Waseda University in Japan for library access, and, for institutional support, to the People’s Law Office in Tokyo, the University of Tokyo, Hunter College, Yale University, and fellowships at the Cogut Center for the Humanities and the Department of East Asian Studies at Brown University, the Harvard Academy for International and Area Studies at Harvard University, Program in Law and Public Affairs (LAPA) at Princeton University, Willis F. Doney Fund at the Institute for Advanced Studies in Princeton, and Chine, Corée, Japon (CCJ) Laboratory at Ecole des Hautes Etudes en Sciences Sociales (EHESS) in Paris.
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