Abstract

Excerpted From: Eric K. Yamamoto and Hanna Wong Taum, Reparations Delayed: Japanese Latin Americans and the United States' WWII Human Rights Transgressions, 31 Asian American Law Journal 3 (2024) (360 Footnotes) (Full Document)

The Japanese Latin American reparations initiative has faced stiff U.S. government opposition through the years. Congressional leaders rejected the JLAs' claims for inclusion in the 1988 Civil Liberties Act's redress for World War II Japanese Americans--the presidential apology, individual reparations, and public education fund. Government officials stonewalled further JLA legislative lobbying and, later, federal court litigation for JLA inclusion under the Act. The JLA justice initiative thus stalled in the headwinds of government recalcitrance.

As mentioned in the Prologue, in 2020, after a lengthy inquiry, the Inter-American Commission on Human Rights found clear U.S. violations of JLAs' human rights. Then, in 2022, President Biden's address on the Day of Remembrance acknowledged the JLAs' wrongful exclusion from the 1988 CLA. “We ... acknowledge the painful reality that Japanese Latin Americans, who were taken from their Central and South American homes and incarcerated by the United States Government during World War II, were excluded from the Civil Liberties Act of 1988.”

The Commission's findings and President Biden's acknowledgment of the CLA's exclusion of JLAs drew international attention to the United States' little-known World War II human rights debacle on American soil. Together, they sparked renewed prospects for JLA redress. Yet, key questions emerged. How, in the words of Secretary of State Antony Blinken, would the United States now “hold ourselves accountable” and proactively “tak[e] seriously [our] responsibility to address [America's human rights] shortcomings”? More specifically, how would the United States finally begin to rectify what President Biden effectively acknowledged was a sweeping U.S. violation of the JLAs' human rights?

The multidisciplinary framework of Social Healing Through Justice, described in Part IV, provides a lens for productively making those assessments. That analytical framework illuminates key tenets of reparative justice and offers tools for shaping, evaluating, and reconfiguring reconciliation/social healing initiatives that grapple with the persisting wounds of historic injustice. In application, it also highlights converging JLA and American interests in U.S. human rights accountability.

As backdrop, Part II of this Article concisely describes the JLAs' decades-long pursuit of justice. It starts with the Shibayama brothers' reparations claims with the U.S. Office of Redress Administration, the Mochizuki JLA class action lawsuit for inclusion in the Civil Liberties Act, and the Shibayamas' separate federal court lawsuit--all rejected.

Part III then recounts the Shibayamas' last-resort petition to the Inter-American Commission on Human Rights. It charts the Commission's 2020 findings of U.S. human rights violations for repeatedly denying the Shibayamas' CLA redress claims. It then separately outlines the Commission's reasoning for its findings of and recommended remedies for the United States' violation of the JLAs' right to equality before the law and right to an effective remedy.

With the Commission's findings and recommendations in mind, Parts IV and V step onto the realpolitik terrain of the reparations process. Part IV offers an overview of the Social Healing Through Justice framework, and how its principles and analytical inquiries highlight the contemporary political push for proactive U.S. measures for redressing human rights transgressions. It then unravels the Commission's recommendations for “integral reparation” and the international human rights norms that undergird the Commission's findings and recommendations.

Through the analytical lens of Social Healing Through Justice and the principles of the international reparations regime described in Part IV, Part V engages in a layered assessment of the United States' moral and legal responsibility for healing the JLAs' persisting wounds. The Commission's findings generate a legal responsibility by identifying the United States' breach of international human rights law: the violation of the Shibayamas' right to both equality before the law and an effective remedy through exclusion of the JLAs from the 1988 CLA's redress for Japanese Americans. Part V then analyzes the Commission's concomitant reference to the United States' moral responsibility, setting the groundwork for the ensuing discussion about the why--why is reparative justice important, and why now? Part VI then assesses U.S. geopolitical interests in accepting that responsibility, particularly the partial revitalization of its tarnished legitimacy as a democracy that espouses fealty to human rights but refuses to repair the damage of its own human rights violations.

Part VII synthesizes the Article's themes by identifying the converging interests of the United States and JLAs in the present-day JLA reparations initiative. It also acknowledges darkside realpolitik obstacles to U.S. engagement, including myriad pressing domestic and geopolitical challenges and political backlash from those generally opposed to reparations and those worried about unveiling past U.S. national security abuses. The reality of this “dilemma of reparations” also uplifts the importance of real-world pragmatism in charting next strategic steps. The conclusion describes how that pragmatism urges reparations proponents to anticipate strident pushback and operational pitfalls, while simultaneously opening new paths for public consciousness-raising and social healing advocacy.

[. . .]

Rebuilding the United States' stature as a leading democracy--influencing security, trade, and geopolitical relationships--is a multidimensional, long-term challenge. As discussed above, starting with the Bush administration after 9/11 and extending through the Trump administration, the United States damaged its global stature by undermining human rights for perceived self-interested political and economic gains.

In endeavoring to repair some of the damage to the United States as a democracy, U.S. leadership is constrained by unyielding economic, cultural, and political pressures. American leadership juggles simultaneous domestic upheavals--a nation divided on issues of race, gender and reproductive rights, LGBTQIA rights, voter disenfranchisement, education, gun violence, immigration (including border control), police abuse, houselessness, climate change, and more. Evolving foreign policy, too, demands constant attention. Hot controversies and Cold War struggles range from Russia's unprovoked attack on Ukraine, to China's aggressive military presence in Asia, to the carnage in and around the Gaza strip in Israel. These challenges, and more, are all key priorities for the United States.

Although apt in certain respects, the critique that JLA redress lacks contemporary political purchase misconstrues the significance of U.S. engagement in JLA reparative justice. This article does not advocate for JLA redress to ascend above other critical U.S. national and foreign policy priorities. Instead, it observes that dedicated, concerted, yet proportionate U.S. engagement with JLA reparative justice presents a valuable interest-convergence opportunity for America's partial rejuvenation as a vibrant, functioning democracy.

The Commission's detailed findings of JLA human rights violations--centered around the Shibayama family's experience--offer a crucial rebuttal to potential political backlash questioning “whether it really happened.” By aligning with international norms of reparation cited by the Commission along with other social healing precepts, and by endeavoring to repair some of the prolonged damage, the United States would demonstrate its commitment not only to its own domestic civil liberties laws, but also to the international human rights norms ostensibly guiding democracies worldwide. And it might do so, then, without simply cynically replicating what critics call first-world hegemony--vacuously speaking of human rights without substantively activating them in practice for vulnerable communities and societies at large.

Many among the vast array of ongoing reconciliation initiatives worldwide are struggling through fits and starts, gains and backsliding. Their aim--to heal the persisting wounds of historic injustice--and effort attest to what is at stake for democracies working to survive in an increasingly hostile, autocratic world.

With reparative words and actions, the United States would likely bolster President Biden's and Secretary Blinken's otherwise loose assurances of the non-repetition of human rights abuses by linking America's next steps for JLA redress to the international human rights principles infused into the Commission's recommendations. By acting upon those recommendations for compensation and “measures of satisfaction,” rooted in notions of legal and moral responsibility, the United States would demonstrate its commitment to integral reparation, as contemplated by the reparative justice regime embodied in the Basic Principles on Reparation and incorporated into the framework of Social Healing Through Justice. And, as a matter of reconstruction, it would assure its international allies that even as the United States maintains a robust global presence on matters of security, trade, health, and the environment, human rights abuses under the mantle of national security or military necessity, like those suffered by the JLAs and the Shibayama family, will be sharply constrained from reoccurring.

By redressing its Japanese Latin American human rights transgressions today, the United States would finally, in President Biden's words, take an affirmative step toward “demonstrat[ing] how strong nations speak honestly about the past and uphold the truth and strive to improve.” It would uplift the global “moral leadership” on human rights the Biden administration promised. In defending human rights, civil liberties, and the rule of law, a rubble-strewn, yet salutary pathway towards renewed U.S. democratic legitimacy lies ahead for the benefit of Japanese Latin American families, the American populace, and global communities committed to the rule of law as an important, albeit imperfect, constraint on abusive governments everywhere. No longer reparations delayed.

Eric K. Yamamoto, Fred T. Korematsu Professor of Law and Social Justice (Emeritus), William S. Richardson School of Law, University of Hawai'i. Copyright of Eric K. Yamamoto 2024.

Hanna Wong Taum, William S. Richardson School of Law, University of Hawai'i, Class of 2024.