By Khrystyna Dumych

For a long time, compensation for damages inflicted by the war was considered only as an obligation of the guilty party. However, over time, the understanding of who can claim compensation and what acts can be subject to compensation has widened. For example, in addition to compensation for damages inflicted by the war, offenses committed as a result of an armed conflict, although not directly related to the armed conflict, may also be subject to compensation. 

At the same time, compensation may be an obligation of not only the party responsible for instigating the aggression. One example of this is the compensation to Japanese-American who were interned by the U.S. government during World War II.

Background

In response to Japan's attack on Pearl Harbor and the United States' entry into the war, tensions arose in American society over the Japanese diaspora, which, in particular, was concentrated on the West Coast. First, President Franklin Roosevelt issued Proclamation 2525, which authorized the detention of Japanese citizens in the United States, and then on February 19, 1942, he issued Executive Order 9066 resulting in the incarceration of approximately 120,000 Japanese Americans.

Internment involved the transfer of these people to places of compact residence, also known as "internment camps", which they were allowed to leave only on January 2, 1946. They were isolated from the outside world and restricted in their basic civil and political rights, deprived of the right to use their own property, and lost their jobs. Inside the camps, a 20-by-25 feet room was allotted to Japanese families.  At the same time, neither their disloyalty to the U.S. government nor their cooperation with the Japanese government or army was proven against the vast majority of them.

Issues with Compensation

The issue of compensation to Japanese internees arose almost immediately after the end of World War II. To resolve this issue, the Japanese-American Claims Act was adopted in 1948, which regulated the procedure for compensating Japanese-American internees for property losses due to the internment. In total, approximately 23.6 thousand claims were settled for a total amount of approximately $138 million (approximately $1.67 billion at the 2023 exchange rate).

However, just as in the case of the Guam residents, the settlement of property claims did not mean resolving the problems with non-pecuniary, moral damages. This issue was actively raised as part of the struggle for civil rights in the United States in the 1950s and 1970s by activists of the Japanese American Citizens League and later the National Council for Japanese American Redress. A certain challenge in advocating for this issue, as it was, for example, in the case of Korean "comfort women", was the taboo nature of this topic in the Japanese American community.

Congressman Mike Lowry's bill to compensate Japanese survivors of the camps was the first attempt to address the issue of compensation for non-pecuniary damage to Japanese Americans, but it was rejected at the level of the House of Representatives' committee. The attempt by activists of the League and the National Council to seek compensation in court, which was definitively denied by the U.S. Supreme Court in 1988, also failed.

Resolving the Compensation Issue

However, the issue was becoming increasingly acute, and on July 31, 1980, US President Jimmy Carter created the Commission on Wartime Relocation and Internment of Civilians. As part of its work, the Commission interviewed 750 internees and published Personal Justice Denied report in 1983, which found the internees' claims to be substantiated and recommended the payment of compensation of $20,000 to all victims.

The issue of compensation for Japanese internees was resolved in 1988 when U.S. President Ronald Reagan signed the Civil Liberties Act. It contained an apology to the victims of such policies and, as recommended by the Commission, provided for a compensation payment of $20,000 to "the internees, evacuees, and persons of Japanese ancestry who lost liberty or property because of discriminatory action by the Federal government during World War II." In total, $1.2 billion (approx. $3.1 billion at current exchange rates) was disbursed in reparations to 82,219 victims.

Conclusions for Ukraine

As in the previous situations analysed (compensation for Korean comfort women and residents of Guam), the Ukrainian government should consider not only the material but also the moral aspect of compensation for losses due to the Russian aggression. Compensation for pecuniary damage alone will not mean full justice for the victims. Therefore, compensation strategies should consider moral damages and their compensation as well.

Secondly, Ukraine should conduct a clear analysis that would establish which groups of people have been affected by the conflict and have suffered certain losses. A comprehensive solution to this problem will help eliminate painful issues from the public discourse and prevent faults along these lines.

To this end, the government should engage in an active public dialogue to determine which groups have been affected be the aggression and which will require compensation for pecuniary, non-pecuniary, and moral damages. This damage assessment is no less important than the qualitative aspect, and is strategically important for the restoration of Ukrainian society and the protection of the rights of certain groups.

The publication was prepared with the support of the International Renaissance Foundation as the part of the project "#Compensation4UA/Compensation for war losses for Ukraine. Phase II: ensuring the effectiveness of mechanisms at the national and international level" project.