By Khrystyna Dumych

Compensation for damages inflicted by the war is often perceived as the sole responsibility of the party that unleashed the aggression and is guilty of international crimes. At the same time, the state that suffered from the aggression also has an obligation to create mechanisms that would ensure timely and full compensation to the victims. Otherwise, the process of compensation will cause friction in society for many decades. An example of this is the compensation for damages inflicted by the war to the residents of the Island of Guam, which they suffered during World War II.

Background

The Island of Guam, located in the Pacific Ocean, has been in the possession of the United States since 1898, and, at the time of the US entry into World War II in December 1941, the Department of the Navy was responsible for the defense of the island. Shortly after the attack on Pearl Harbor, Japanese troops invaded Guam, and its occupation lasted almost three years, from December 1941 to July 1944.

The indigenous population of Guam, the Chamorros, were brutally persecuted by the occupation administration. People were sent to forced labor, imprisoned and tortured, punished if they did not greet Japanese officers and officials. The official use of the Chamorro language was banned. Moreover, the Chamorros suffered property losses both during the capture and during the liberation of the island.

After the war ended, on November 15, 1945, the US Congress adopted the Guam Meritorious Claims Act, which authorized the Secretary of the Navy to adjudicate and settle claims for damages of up to $5,000, caused to the island's residents during the Japanese occupation. Claims for a larger amount required a decision of Congress.

To enforce this law, the Ministry of the Navy issued a special order on May 6, 1946, and that was the beginning of the claim submission period, which ended on December 1 of the same year. Although only property losses could be the subject of claims under the Act, claims for other damages (death, injury, etc.) caused to Guam residents were also accepted, and the decision to satisfy them was also to be made by the US Congress.

In 1947, a special commission was established, headed by Ernest M. Hopkins, President of Dartmouth College from 1916 to 1945, which had to assess how effectively the Navy was managing the territories of Guam and American Samoa. In its report — The Hopkins Report — the group stated that the review of claims for damages and decision-making were slow and inefficient, even though the application period was very short. However, the Commission's conclusions were not taken into account.

Compensation to the Guamese was limited to property damage, and in 1951 the United States signed the Treaty of Peace with Japan with a provision waiving further claims for reparations. In fact, the situation repeated itself with compensation for South Korean "comfort women" — the official position of the US government for decades was to refuse to further consider compensation for Guam residents.

Finding a Solution to the Problem

However, the issue of compensation was discussed on the island and in 1967 and 1972 the island's legislative body considered bills that initiated claims for compensation against Japan that were not considered due to the lack of authority of the Guam legislature. And in the 1980s, the so-called Bamba Report, named after one of its authors, Senator George Bamba of Guam, was issued, which recorded hundreds of testimonies of survivors of the occupation about the abuse they suffered.

The situation was becoming increasingly acute due to the fact that Guam's residents perceived the damage caused to them during the war not just as a consequence of Japan's actions, but as a violation of the United States' obligation to protect the island in case of aggression. Therefore, in overall perception, Japan's refusal to pay reparations did not mean that the United States was not obliged to pay them on its own.

"At the time [of the occupation], when the Chamorro people were going through this, there was a feeling that the United States had abandoned them, and that feeling has not gone away", emphasized Robert Underwood, a representative of Guam in the U.S. House of Representatives from 1993 to 2003.

The situation became more complicated in 1971, when the Micronesian Claims Act came into force. This law created better conditions for the residents of other US Pacific island territories in terms of compensation for damages inflicted by the war than the Guam Meritorious Claims Act.

Since then, and until the early 2000s, about a dozen legislative initiatives have been introduced in the U.S. Congress to ensure fair compensation for Guam. However, the final settlement of this issue began in 2002 with the establishment of theGuam War Claims Commission. In 2004, its recommendations were reflected in the Guam World War II Loyalty Recognition Act. Consideration of this bill in Congress lasted long enough, but eventually, in December 2016, it was adopted and signed by Barack Obama.

Claims were accepted and processed from June 2017 to June 2018, and upon finalization of technical procedures, the compensation process began in January 2020 and lasted until February 2023. The program settled 243 claims totaling approximately $2.23 million for two categories of victims: heirs of persons who died during the occupation and liberation of the island, and victims of torture, forced labor, and sexual violence who were alive at the time of the enactment of the Guam World War II Loyalty Recognition Act and their heirs.

Conclusions for Ukraine

The key lesson that Ukraine should take from the precedent of compensation to Guam residents is that claims for compensation should not be limited to the property aspect ONLY. Commonly, victims do not suffer pecuniary damages (such as loss of property), but their physical and mental suffering can be equally or even more important.

The task of the Ukrainian government is to develop and ensure a comprehensive approach to compensating the injured Ukrainians, where non-pecuniary damages are properly considered.

Sufficient and reasonable timeframes should be provided for filing and considering the claims. In the history of Guam, during both the 1946 reparations process and the 2016–2023 process, these terms (six months and a year, respectively) were not sufficient. It should also be borne in mind that victims of violence can often hide their suffering, and the government should create legal and psychological procedures that would make it possible to establish all the facts and to compensate and heal the harm caused by the aggression.

Finally, it is important to avoid creating conditions in which a particular group of victims feels undervalued or discriminated, compared to others, as was the case with the people of Guam and Micronesia. Otherwise, it would only exacerbate the wounds inflicted by the military conflict on society as a whole and on a social group in particular, and would not contribute to the creation of a completely fair mechanism of compensation.

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.