Three lawsuits in Chinese courts over the past 11 years have gone nowhere, sinking without a trace.
In the course of researching a chapter for a forthcoming book, I read about some lawsuits launched in Chinese courts by individual plaintiffs against the state of Japan or Japanese companies, seeking compensation for injuries suffered during and before World War Two. I dug into the cases a bit and thought readers might find the results interesting.
The legal difficulty with the lawsuits against the Japanese state, at least, is (among other things) China’s own theory of foreign state immunity, which used to be absolute (you can’t sue a foreign state about anything) and is now restrictive (you can sue, but only in certain kinds of cases, such as commercial activity).
Some Chinese scholars have argued that states do not get immunity for violations of jus cogens: peremptory norms of international law such as the prohibition on slavery. Perhaps mindful of the Pandora’s box this exception might open, no official Chinese state representatives have endorsed this theory to the best of my knowledge.
Some cases have been brought, but didn’t go anywhere.
Case A
Between 2006 and 2009, victims of the Chongqing bombing campaign brought four cases in Japanese courts, but were unsuccessful. On Sept. 10, 2012, they filed the first case of its kind of China, seeking compensation from Japan. That case seems to have gone nowhere; after a similar case filed in Japan failed again, an attorney for the plaintiffs spoke of filing a second Chinese lawsuit.
Case B
In March 2014, Chinese media carried Japanese media reports that the Tangshan Intermediate People’s Court had declined to docket a complaint filed against Japan and two Japanese companies by 12 Tangshan plaintiffs alleging forced labor in World War Two. (It’s interesting that the Chinese media did not report the matter directly, but instead cited Japanese media reports.) The court cited inadequate documentation as the reason without specifying in what respect the documentation was inadequate. It further apparently told the plaintiffs that the court’s rank was simply too low to handle this kind of matter, and that after amending their complaint they should refile in the court at Shijiazhuang, presumably referring to the Hebei provincial court.
Later in the same month, the plaintiffs filed again in the same court, apparently for unknown reasons not taking its advice to file in the provincial high court. I have not found any reports of the case since then. It looks like it suffered the same fate as its predecessors.
Case C
In February 2014, 37 Chinese alleging that they or their relatives had been subjected to forced labor during World War Two brought a lawsuit in Beijing’s First Intermediate People’s Court. In this case, it appears that Japan was not a defendant; the defendants were the Mitsubish Corporation and another Japanese company.
In February 2015, the plaintiffs’ legal team announced that they were calling off out-of-court settlement negotiations on the grounds that the defendants lacked sincerity. They further announced that the case was expected to go to trial within two months.
In August 2015, Mitsubishi reached a settlement with some of the Chinese victims of forced labor. However, the group involved in the Beijing case did not accept the settlement and announced they would continue with the lawsuit. In the end, however, that case seems like the others to have faded away without a conclusion.
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There is a lot that is unclear about the three cases above. But one thing is clear: the Chinese government never allowed them to go very far. In no case do we see a Chinese court making an adverse finding even against Japanese companies, let alone the Japanese state. This can hardly be because judges harbor secret sympathies for Japan. It is much more likely that they are getting the message that this kind of case is beyond their pay grade. These are momentous matters involving sensitive issues of foreign relations, and courts need to butt out — particularly if a finding for the plaintiffs would mean the endorsement of a theory of liability (no immunity for violations of jus cogens norms) that the Chinese government itself is very leery about.
The recently-passed Foreign State Immunity Law doesn’t change any of this. The plaintiffs’ theories of liability are no better under the restrictive theory than they are under the absolute theory. In short, while the state-controlled media may rage against Japan, I predict that the Chinese government will not attempt to hold Japan liable for World War Two reparations in Chinese courts.