Raymond Heimbuch's quiet life in a Sacramento suburb doesn't reveal his old wounds from a brutal Japanese prisoner-of-war camp. Neighbors can't see the 81-year-old's recurring nightmares or the scar under his hair where a camp guard's saber laid open his scalp long ago.
Image © ASDV, 2001

He was a 98-pound "walking skeleton" when freed from the war camp in 1945, never imagining that his name today would echo through Congress in angry debate and a constitutional confrontation over California's attempt to use its court system as an international war crimes tribunal.

With a small army of lawyers and volunteer supporters at their side, Heimbuch and other World War II victims -- former sex slaves from Korea, human guinea pigs of cruel medical experiments in China and POWs from several countries -- are pressing their demands against Japan in a surge of lawsuits, citizen tribunals and press events around the globe.

And perhaps nowhere in this conflict are the financial stakes, legal artillery and constitutional issues bigger than in California.

The state has become a spearhead in an international campaign to confront Japan over its wartime sins, thanks in large part to a groundbreaking 1999 state law that allows former POWs to file suit in California courts against companies that used them as forced labor.

JAPAN TARGETED

The law, by former state Sen. Tom Hayden, was aimed at Nazi Germany and its wartime allies, but because German claims were subsequently folded into a settlement fund, Japan has become the target.

Class-action and individual suits, now numbering more than 30, seek compensation and damages from global business giants with names such as Mitsubishi, Mitsui and Nippon Steel.

Although the state law still faces stiff court challenges, one lawyer for plaintiffs said potential settlements could reach $30 billion, which would dwarf the $5 billion fund recently set up by the German government and German companies to settle forced-labor claims from the Nazi Holocaust.

Military and civilian prisoners from several nations were transported to Japan and elsewhere in filthy, crowded "hell ships" in the "biggest slave shipping operation since the African slave trade," said Los Angeles attorney Barry Fisher, one of the estimated 80 lawyers representing the POWs.

The POWs and their supporters say they are seeking long-delayed justice and recovery of ill-gotten wealth, while detractors view the campaign in some degree as extortion that uses POWs as unwitting pawns to enrich American lawyers and win patriotic votes for politicians.

"How is it possible to sue companies 55 years after the fact, in a court 5, 000 miles from the event?" asked a Wall Street Journal editorial. "Thank U.S. trial lawyers, who have pushed through laws that allow them to profit from an ever wider circle of human misfortune."

OPPOSITION ON ALL SIDES

The POWs' struggle has been uphill, with opposition from the U.S. and Japanese governments, as well as the Japanese corporations, who all say the claims were settled by the Treaty of Peace with Japan, signed by 49 nations in San Francisco 50 years ago.

But the most formidable challenge may be the most recent one -- the lawsuits have found themselves at the center of an emerging constitutional tug- of-war between a state's attempt to enforce international human rights and federal authority to speak with "one voice" in foreign policy.

A central question is: Can state courts pass judgment on alleged crimes outside the United States by foreign companies involving victims from around the world?

Suits against foreign defendants for alleged cruelty committed abroad have been filed in federal or national courts in recent years, ranging from cases by Salvadoran torture victims against Salvadoran soldiers in U.S. federal court to an attempted prosecution against former Chilean dictator Gen. Augusto Pinochet in a Spanish court. But California pushes the frontier by authorizing state courts to judge such claims.

The California law allows former POWs and civilian forced laborers or their heirs to sue, no matter what country they are from, and thus opens the door to large numbers of plaintiffs turning to California courts for what one professor in China happily called "a shortcut to justice."

The growing list of plaintiffs so far includes Chinese, Koreans, Filipinos, British, Australians and Dutch former prisoners as well as Americans.

Opposing attorneys sharply disagree on whether the law is barred by the Constitution, and they, along with legal scholars, are awaiting a ruling by U. S. District Judge Vaughn Walker, who asked for special briefings on the questions that were submitted last month.

"There's a legitimate constitutional issue there," said Professor Calvin Massey of the University of California's Hastings College of the Law. "It falls into kind of a unique zone of whether, by passing a law of such expansive scope, California is attempting to formulate a foreign policy of its own or simply attempting to provide a forum for redress of grievances that are fairly connected to California."

The state-federal conflict "between human rights internationalism and one- voice nationalism" is likely to end up before the U.S. Supreme Court in the near future, said Curtis Bradley, an international law professor at the University of Virginia School of Law.

Recent rulings have cast the issue onto a seesaw, with the Supreme Court last year striking down Massachusetts sanctions aimed at Burma and the federal appeals court in San Francisco this year finding that a California law on Holocaust-era insurance does not conflict with U.S. foreign policy.

Heimbuch was one of about 50,000 American soldiers and civilians captured by the Japanese, and most were forced to work 12 hours a day or more for Japanese companies, said one of his attorneys, Bonnie Kane of San Diego.

The prisoners were "systematically starved, beaten and tortured," Kane told a war reparations forum at Boalt Hall School of Law in Berkeley last month.

About 7,000 American military POWs held by Japan are still alive and in their late 70s and 80s. "There's a sense that it's now or never," said plaintiff attorney Dan Girard of San Francisco.

U.S. OPPOSES POWS' SUITS

A bitter surprise for many was their own government taking legal sides against them.

Sen. Orrin Hatch, R-Utah, called U.S. government policy on World War II reparations "absolutely ridiculous." Why, he demanded in a June hearing where Heimbuch's name was invoked, did the U.S. government support the German slave- labor fund but not compensation for Heimbuch and other POWs held by Japan? The U.S. government helped negotiate the German agreement.

The answer, said State Department representatives, is that POWs received reparations from Japan after the war and that further claims were barred by the peace treaty. The United States had no such treaty with Germany.

The State Department also said all parties in the German case, unlike the Japanese case, agreed to a settlement fund.

The State Department argued in court that America's chief negotiator for the treaty, John Foster Dulles, and the senators who ratified it wanted to avoid the kind of ruinous reparations imposed on Germany after World War I and wanted devastated Japan to recover quickly as a strong Asian bulwark against communism.

Judge Walker said he agreed with the government position that the cases "carry potential to unsettle half a century of diplomacy." He ruled in September that the peace treaty settled the claims for the countries that signed it, and dismissed Heimbuch's suit and 17 others by POWs from signatory nations. Those cases are on appeal.

His review of the constitutional issue is currently limited to the Chinese and Korean cases because those countries did not sign the treaty.

SOME GIS COMPENSATED

Several defendant companies, while deploring brutality suffered by POWs, say they are not the same firms that used forced labor, even though they may share a corporate-family name. Japan's zaibatsu corporate families were broken up by the American occupation, and many firms were reorganized.

The State Department also said many POWs received compensation under the War Claims Act of 1948, which entitled them to $1 a day for food deprivation and an additional $1.50 a day for inhumane forced labor, amounts that POWs call woefully inadequate. The State Department said a Bataan Death March survivor, for example, would have received about $3,104, equal to about $20, 646 in year 2000 dollars.

That figure is larger than many contemporary war-reparation payments, such as those to be paid Nazi POWs by the new German fund. Some POWs held by Japan said they didn't receive any compensation, often because they were not aware they could apply for it. Heimbuch said he received only the $1-per-day food compensation, for a total of $1,214.

Walker said the peace treaty with Japan "exchanged full compensation of plaintiffs for future peace. History has vindicated the wisdom of that bargain. "

Many POWs say their foremost demand is not compensation but apology.

©2001 San Francisco Chronicle