19. U.S. response to IACHR Petition, In re Isamu Carlos Shibayama, alleging WWII internment (December 17, 2004)
Response of the Government of the United States
Petition No. P-434-03 In Re Isamu Carlos Shibayama et al
The Government of the United States (“United States Government” or “United States”) respectfully submits that the Inter-American Commission on Human Rights (“Commission”) should declare inadmissible the petition of Mssrs. Isamu Carlos Shibayama, Kenichi Javier Shibayama, Takeshi Jorge Shibayama (“Petitioners” or “Shibayamas”), and the Japanese Peruvian Oral History Project. (Petition No. P-434-03) The petition should be declared inadmissible because the Commission is not competent, ratione temporis, as the facts alleged occurred before the creation of the Commission and the adoption of the American Declaration on the Rights and Duties of Man (“American Declaration”).  Even if Petitioners demonstrate that the Commission is competent ratione temporis, the petition would nonetheless be inadmissible as they have failed to pursue and exhaust their domestic remedies.
Statement of Facts and Procedural History
The United States Government disputes many of the assertions made by Petitioners, such as, but not limited to, the allegation that United States policies during World War II (“WWII”) were part of a systematic “ethnic cleansing” scheme. (Petition at 7n.18) Nonetheless, the facts as alleged in the petition relevant to the issue of admissibility are as follows:
1. In early 1944, Petitioners were relocated from Peru to the United States. (Petition at 1)
2. From late 1944 to early 1946, Petitioners were interned at a WWII internment camp in Crystal City, Texas. (Petition at 1)
3. In 1988, the United States enacted the Civil Liberties Act (“CLA”), which provided redress payments of $20,000 to persons of Japanese ancestry interned during WWII. The CLA also included an official apology to internees and their families and supplied funds for public education regarding internment. (Petition at 1)
4. In 1992, the United States Department of Justice’s Office of Redress Administration notified Petitioners and other members of their family that they were ineligible for restitution under the CLA because they were not U.S. citizens or permanent resident aliens at the time of their internment. (Petition at 1-2)
5. Petitioners then joined a class action lawsuit against the United States Government. (Petition at 2) The parties reached a court-approved settlement, providing Petitioners and the other members of the class $5,000 in restitution for their internment. Mochizuki v. United States, 43 Fed. Cl. 97 (Fed. Cl. 1999). Petitioners, however, refused the settlement. (Petition at 2)
6. Petitioners then filed a separate lawsuit in United States District Court for the Northern District of California, alleging Fifth Amendment violations under the United States Constitution and international human rights violations. (Petition at 2) Petitioners sought declaratory and other equitable remedies under the CLA. (Petition at 2) Their claims were transferred to the United States Court of Federal Claims. (Petition at 2)
7. On December 19, 2002, the Court of Federal Claims ruled that Petitioners were not eligible for redress under the CLA because they were not United States citizens or permanent resident aliens at the time of their internment. Shibayama v. United States, 55 Fed. Cl. 720 (Fed. Cl. 2002).
8. Following the Court of Federal Claims decision, Petitioners failed to exercise their right of appeal to the United States Court of Appeals for the Federal Circuit. (Petition at 4)
Petitioners allege that the United States Government violated Articles I, II, V, VIII, XII, XIV, XVIII, XXV, and XXVI of the American Declaration as a consequence of:
1. Their “seizure and detention” by the United States Government. (Petition at 1);
2. Their inclusion in classes at the internment camp that were only taught in English or Japanese languages. (Petition at 1); and
3. The denial of compensation under the CLA. (Petition at 2)
Argument of the Government of the United States
1. The Shibayamas’ Petition Should be Declared Inadmissible Because the Commission Lacks Competent Ratione Temporis to Hear Their Petition
In order for the Commission to declare a petition admissible, it must be satisfied that the Commission has competent ratione temporis, ratione loci, ratione personae, and ratione materiae. See e.g., IACHR, Admissibility Report N° 62/03, Petition P12.049, Kenneth Walker, October 10, 2003, United States, Annual Report 2003, para. 38 (finding petitioner’s claim inadmissible). Ratione temporis, or temporal jurisdiction, means that the Commission is competent only to hear petitions alleging facts that occurred on or after the date on which the commitments of the State involved took effect. See e.g., I/A Court H.R., Alfonso Martín Del Campo Dodd Case, Preliminary Objections, Judgment of September 3, 2004, Ser. C N° 113, (2004), para. 85 (holding that the Court lacked competent ratione temporis because the alleged events ceased to exist prior to Court having cognizance over supposed violations). Moreover, the Commission has stated that it has competent ratione temporis to examine only those complaints that allege facts that occurred “on or after the date on which the United States’ [commitments] under the American Declaration took effect.” Kenneth Walker at para. 38.
A. Alleged Facts Stated by Petitioners Occurred Before the Adoption of the American Declaration and the Creation of the Commission, Thereby Precluding Ratione Temporis
Ratione temporis is an established principle of international law. Article 28 of the Vienna Convention on the Law of Treaties (“Vienna Convention”) states:
Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.
Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, art. 28, 8 ILM 679. Nowhere do the Rules of Procedure of the Commission indicate any intention to obviate from the longstanding rule memorialized in Article 28 of the Vienna Convention. Indeed, as noted above, ratione temporis competency is a necessary component of the Commission’s admissibility analysis. See e.g., Kenneth Walker, at para. 38. In this regard, the Commission is merely applying a generally accepted principle of international law. See e.g., I/A Court H.R., Cantos v. Argentina, Preliminary Objections, Judgment of September 7, 2001, Ser. C N° 85, para. 37 (recognizing that the principle of non-retroactivity of international norms is embodied in the Vienna Convention).
Other international human rights bodies formed under multinational conventions condition admissibility in their forums on ratione temporis, as well. In a United Nations (“UN”) Human Rights Committee decision involving Argentina, claimants alleged that, among other things, their relatives were either killed or kidnapped under the previous Argentine government in 1976. R.A.V.N. v. Argentina, Hum. Rts. Comm., Communication No. 343/1988 (5 April 1990), para 2.3. However, the two applicable instruments – the International Covenant on Civil and Political Rights and the Optional Protocol for Argentina – did not come into force for Argentina until November 8, 1986. Id. at para. 5.2. The Committee held that the Covenant “cannot be applied retroactively” and that the Committee is “precluded ratione temporis” from examining alleged violations of the Covenant that occurred before the Covenant entered into force for Argentina. Id.
In the present case, the gravaman of Petitioners’ allegations are that they were forcibly abducted by United States military forces from Peru in 1944. (Petition at 1) Petitioners further state that they were detained in the United States until 1946. (Petition at 1) However, the Commission was not created until some 13 years later, in 1959. Furthermore, the American Declaration – as well as the Organization of American States, for that matter – did not come into existence until 1948 when the OAS was founded and the American Declaration was adopted. See Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/I.4Rev.9 at 4 (2003); see also IACHR, Report Nº 113/01, Case Nº 11.140, Mary and Carrie Dann, October 15, 2001, United States, Annual Report 2001, para. 95 (finding fact that events raised in Petitioner’s claim occurred subsequent to the State’s ratification of the OAS Charter as paramount to question of American Declaration’s applicability). For the Commission to assert jurisdiction ratione temporis and retroactively consider the American Declaration in the context of this case’s facts – which predate the Commission’s formation by 13 years and the existence of the American Declaration by two – would cause the Commission to be in clear contravention of established international legal norms, as reflected in Article 28 of the Vienna Convention, the Commission’s previous findings, and the work of other international processes. Any petition alleging facts that occurred before the time of the Commission’s creation and the American Declaration’s adoption is beyond the competence of the Commission, and therefore, inadmissible.
B. Petitioners Fail to Demonstrate that Alleged Facts are “Continuing Violations”
Although the alleged acts ended with Petitioners’ release in 1946, Petitioners claim that the acts are “ongoing.” (Petition at 6) As indicated by Article 28 of the Vienna Convention, despite all attempts at artful argument, it is evident that all of the purported subsequent violations are, in fact, premised on the allegedly wrongful actions arising before 1948.
The Inter-American Court has adopted a strict interpretation of what constitutes a permissible “ongoing illicit act.” See e.g., Cantos, at para. 39. In Cantos, the petitioner, José María Cantos, was the owner of a business group in Argentina, employing over 700 people. Id. at para 2. In 1972, the government conducted a series of searches in Cantos’ administrative offices, seizing all company books, accounting documentation, and other business records. Id. The government continued to harass Cantos by detaining him incommunicado more than 30 times. Id. However, because these abuses “occurred before the entry into effect [September 5, 1984] of the Convention for Argentina,” the court held that they did not fall within the Court’s jurisdiction. Id. at para. 38. The Inter-American Court concluded by noting that, “if any of the facts imputed to the State were [ongoing illicit acts] it would not be a ‘fact that had occurred after September 5, 1984,’” the time at which Argentina’s commitments under the American Convention on Human Rights began. Id. at para. 39. Thus, even if an alleged act were deemed an “ongoing illicit act,” the Inter-American Court could only have competence ratione temporis if such acts occurred “on or after the date” the State assumed its commitments under the relevant treaty. Id.
The strict interpretation of what constitutes an “ongoing illicit act” employed by the Inter-American Court is shared by other international judicial bodies. The European Court of Human Rights (“ECHR”) defines a “continuing situation” as “a state of affairs which operates by continuous activities by or on the part of the State to render the applicants victims.” Posti and Rahko v. Finland, Eur. Ct. H.R., Application No. 27824/95 (2002), para. 40, available at: http://www.ehcr.coe.int/eng (accepting, in part, Finland’s preliminary objection because the Government’s issuance of a decree that limited the fishing gear fishermen could use is not deemed a “continuing situation,” despite the decree’s permanent nature). The ECHR further states that “the fact that an event has significant consequences over time . . . does not mean that the event has produced a ‘continuing situation.’” Id.
Here, it is abundantly clear that the alleged acts occurred and ceased well before the creation the American Declaration and the Commission. The alleged “seizure and detention” of Petitioners began in 1944 and ceased when Petitioners left the Crystal City Internment Camp in 1946. (Petition at 1) While “these acts” as they are termed in the petition, were arguably “ongoing” for 1944-1946, it is impossible for the alleged “seizure and detention,” to have continued beyond the Shibayamas’ release from Crystal City in 1946. (Petition at 6) Therefore, lacking any alleged acts that occurred after the creation of the American Declaration and the Commission, this petition cannot be competently heard by the Commission.
Despite acknowledging that these alleged events occurred over a decade before the Commission was created and two years before the American Declaration took effect, Petitioners claim that “these acts are ongoing” because: 1) “[the Petitioners] have received no redress;” and 2) the alleged acts of “seizure and detention” are part of a “continuing policy” in which the United States is still participating. (Petition at 6) However, even assuming the impossible – that detentions ending with Petitioners’ release in 1946 could effectively continue after their release – their further justifications are patently erroneous.
First, in order for such a “continuing policy” to exist, the United States Government would have needed to have had a policy of detention and that policy would have needed to extend long enough so that it was still in effect after the advent of the American Declaration and the Commission, which it clearly did not do. The detention of all WWII internees, including Petitioners, ended in 1946. Following their release, Petitioners took advantage of a myriad of administrative and judicial processes that belie their assertion that “ongoing” activities rendered them continuous victims. Seemingly, Petitioners mistakenly identify the myriad of due process rights they exercised as evidence of a “continuing policy” of “seizure and detention.” (Petition at 6) Petitioners claim, without basis, that because the United States Government has failed to issue an “appropriate apology” and “acknowledge its true role” for the allegations leveled by Petitioners, this indicates the “policy” is still in effect. (Petition at 6n.17)
However, the United States Government has already made a full apology for the wrongful internment to the people of Japanese ancestry who were taken from Latin American countries. (Petition at 2) Former President Bill Clinton issued an official apology at the time the settlement agreement was reached. James Rainey, U.S. Apologizes to Internees, Los Angeles Times, June 13, 1998, at B1. Offering the apology “on behalf of all Americans,” President Clinton said:
We recognize the wrongs of the past and offer our profound regret to those who endured such grave injustice. We understand that our nation’s actions were rooted in racial prejudice and wartime hysteria, and we must learn from the past and dedicate ourselves as a nation to renewing and strengthening equality, justice and freedom.
Id. Indeed, even recipients of the settlement felt that the United States Government had properly accepted responsibility for the internments, which occurred over 50 years before. Carmen Mochizuki, the named plaintiff in the class action lawsuit, said at the time of the settlement: “We are victorious today for making the United States government [sic] finally accept responsibility for its actions against us.” Id.
Second, as stipulated by Petitioners, the sole reason that Petitioners did not receive redress for their detentions is because they refused a class action settlement agreement, in which the United States Government agreed to make a $5,000 redress payment to each eligible member of the class, which included Petitioners. (Petition at 2); see also Mochizuki, 43 Fed. Cl. Thus, in filing this petition, Petitioners are essentially asking the Commission to provide remedies for events for which the United States Government has already offered redress.
In addition to the official apology made by President Clinton, on June 11, 1998, the United States Court of Federal Claims issued an “Order Granting Preliminary Approval of Settlement Agreement” in Mochizuki v. United States, 41 Fed. Cl. 54 (1998). The order preliminarily certified a class of:
Persons who have not previously received payments under the Civil Liberties Act of 1988 from the Office of Redress Administration. United States Department of Justice and who are (a) persons of Japanese ancestry who were living in Latin America before World War II and who were interned in the United States at any time during the period from December 7, 1941, to June 30, 1946; OR (b) person who are spouses, children, or parents of persons who died after August 10, 1988, and who met the qualifications of (a) above.
Id. at 55. On January 25, 1999, the court issued an opinion and order, certifying the class identified above and approving a settlement reached between the class and the United States Government. Mochizuki v. United States, 43 Fed. Cl. Upon approval, the Court recognized that while “no compensation is ever equivalent to a serious human loss . . . the Settlement Agreement . . . is fair, reasonable, and adequate.” Id. Petitioners were original members of the class and were each due $5,000, according to the terms of the settlement agreement. (Petition at 2) However, Petitioners refused to avail themselves of this redress. (Petition at 2) Therefore, Petitioners’ claim that the alleged acts are “ongoing” because “they have received no redress,” (Petition at 6), implies more than it should. While it is true they have not received redress, it was because of Petitioners’ own choices. In this regard, Petitioners are attempting to use the Commission to circumvent and replace a “fair, reasonable, and adequate” domestic remedy. To permit such obvious “awards shopping” would undercut the effective administration of case settlements in the domestic courts of Member States.
For the Commission to find competent ratione temporis in this case, it would have to embark upon a dangerously slippery slope without any temporal boundaries to possible claims. Should the Committee decide that it will retroactively apply subsequent human rights standards to conduct predating such instruments, it will be impossible to determine on a principled basis which such petitions to accept and which to reject. Virtually any alleged historical wrong can be recharcterized as a continuing violation through an artful allegation that the failure to provide compensation for the historical wrong constitutes a new or continuing wrongful action. Apart from the lack of fairness of reviewing acts on the basis of rules that did not apply at the time such acts were undertaken, there is a virtually limitless array of historical harms that would be susceptible to Commission review under this theory. Apart from being unjust, such an approach would not be an appropriate use of limited Commission resources, which should be spent addressing contemporary human rights problems. By considering this Petition, the Commission improperly would be exceeding the limits of its jurisdiction to investigate and hear claims that predate its existence and the application of the relevant instrument, i.e., the American Declaration.
2. The Petition Should be Declared Inadmissible Because Petitioners Failed to Pursue and Exhaust Domestic Remedies
Article 31(1) of the Commission’s Rules of Procedure provides that, in order for a petition to be admissible, the petitioning party must affirm that “the remedies of the domestic law have been pursued and exhausted in accordance with generally recognized principles of international law.” As the Inter-American Court has stated: “the rule of prior exhaustion of domestic remedies allow the state to resolve the problem under its internal law before being confronted with an international proceeding. This is particularly true in the international jurisdiction of human rights, because the latter reinforces or complements the domestic jurisdiction.” I/A Court H.R., Velásquez Rodríguez v. Honduras, Merits, Judgment of July 29, 1988, Ser. C N° 4, para. 61 (1988) (holding in a case of forced disappearance that domestic legal remedies were ineffective because the detention was clandestine). The exhaustion requirement essentially compels the claimant to present his claim to an appropriate domestic court, support the claim with all relevant evidence and legal arguments, and take advantage of all procedures for appeal. Restatement of Foreign Relations Law (Third) section 713, reporter’s note 5, and citations contained therein.
Petitioners failed to exhaust available domestic remedies. Their denial of CLA relief by the Court of Federal Claims could have been appealed to the United States Court of Appeals for the Federal Circuit. Under United States’ Federal Rules of Appellate Procedure, Petitioners had 60 days to appeal from the time the Court of Federal Claims entered its decision, but Petitioners chose not to appeal. Fed. R. App. P. 4(a)(1)(B). Petitioners state that they did not appeal the decision because the United States Supreme Court had declined certiorari for the appeals of other claimants for non-CLA matters. (Petition at 4) However, the Commission has stated that “the fact that [a petitioner] fears an unfavorable judgment . . . is not sufficient reason to abstain from contesting the ruling.” IACHR, Admissibility Report N° 87/03, Petition 12.006, Oscar Sirí Zuñiga, October 22, 2003, Honduras, Annual Report 2003, para. 43 (holding that in order for the Inter-American system to fulfill its supplementary role to Member States’ internal legal systems, the alleged victim must exhaust all domestic remedies available to him); see also Velásquez Rodríguez, at para. 67. The Supreme Court’s decision not to take the appeal of other claims has absolutely no bearing on the appellate rights or chances of Petitioners. Furthermore, the claim argued by Petitioners seeking redress under the CLA is highly factual, making it even less likely that the appeals of others would affect the appeals of Petitioners in any way. Therefore, the immediate petition is inadmissible under Article 31(1) of the Commission’s Rules of Procedure because “the remedies of the domestic law” have not been “pursued and exhausted.” Petitioners’ decision not to avail themselves to existing, domestic appellate procedures does not allow them to circumvent the admissibility requirements of Article 31.
Additionally, Article 31(2) of the Commission’s Rules of Procedure specifies three exceptions to the exhaustion requirement that may arise when: (1) the domestic legislation of the State concerned does not afford due process; (2) the party alleging violation of his or her rights has been denied access to remedies under domestic law or has been prevented from exhausting them; or (3) there has been unwarranted delay in rendering a final judgment.
None of the specific exceptions to the exhaustion rule under Article 31(2) of the Commission’s Rules of Procedure apply to this case. First, the CLA does, in fact, provide for due process, as evidenced by its granting of the Court of Federal Claims review of administrative processes. See 50 U.S.C. app. § 1989b-4(h) (Supp. V. 1993). Second, not only have Petitioners not been denied access to remedies under domestic law, but they have actually refused existing remedies under domestic law. Finally, there was not any unwarranted delay in rendering a final judgment by the United States court system because, due to Petitioners decision not to appeal their claim, the appellate courts did not have an opportunity to review the matter. Petitioners’ failure to “pursue” domestic appellate procedures, couple with the inapplicability of the exceptions to the exhaustion requirement, dictate that the Commission must find the petition inadmissible for not meeting the procedural requirements of Article 31.
The Commission should find the Shibayama’s petition inadmissible because the Commission lacks competent ratione temporis. Alternatively, the Commission should find the petition inadmissible for Petitioners’ failure to pursue and exhaust domestic remedies.
 Although Petitioners state in their petition that they are alleging violations under the “American Convention on the Rights and Duties of Man” -- an instrument that could not be the basis for a petition against the United States as the United States is not party to that convention -- the United States Government assumes they are, in fact, alleging violations under the “American Declaration on the Rights and Duties of Man.” (Petition at 2)
 Furthermore, the United States adheres to a similarly strict interpretation of a “continuing violation,” as evidenced by the United States Supreme Court’s ruling in Nat’l R.R. v. Morgan, 536 U.S. 101, 110 (2002) (holding that only those acts that occurred within the relevant filing period are actionable). In Morgan, the Supreme Court reversed the Ninth Circuit Court of Appeals’ continuing violation doctrine cited below by Petitioners, stating, in part, that “A discrete . . . act ‘occurred’ on the day that it happened.’” Id. at 110.
 In this context, the United States Government rejects the Petitioners’ unsubstantiated assertion that the recent detention of enemy combatants in the war on terrorism is related to the present situation. (Petition at 6n.17)
 For the general proposition that a continuing policy is a continuing violation, Petitioners rely on Green v. Los Angeles County Superintendent of Sch., 883 F.2d 1472 (9th Cir. 1989) (finding no continuing violation). In Green, an employment discrimination case, the court stated that in order for a continuing violation to apply in the continuing policy context, a plaintiff must show that a policy operated at least in part within the limitation period for filing. Id. at 1480. Therefore, applying Green’s principle fully to this petition would mean that in order for the continuing violation theory to apply in the context of a continuing policy, at least part of the animating violation would have to take place during the applicable time period – after the existence of the American Declaration and the Commission. This, of course, is not the case.
 For that matter, nor does the denial of certiorari implicate in any way the United States Supreme Court’s position on the merits of a given case.