HUMAN RIGHTS COMMITTEE

Atkinson et al. v. Canada

Communication No. 573/1994

31 October 1995

CCPR/C/55/D/573/1994

ADMISSIBILITY

Submitted by: Harry Atkinson, John Stroud and Roger Cyr [represented by counsel]

Alleged victims: The authors and the Hong Kong veterans

State party: Canada

Date of communication: 30 May 1993 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 31 October 1995,

Adopts the following:

Decision on admissibility:

1. The authors of the communication are Harry Atkinson, John Stroud and Roger Cyr, Canadian citizens, who submit the communication on their own behalf and on that of the Hong Kong veterans. They claim to be victims of a violation by Canada of articles 2, paragraph 3(a), and 26 of the International Covenant on Civil and Political Rights. They are represented by counsel.

The facts as submitted by the authors:

2.1 The authors belonged to two battalions dispatched by the Canadian Government to Hong Kong late in the year 1941 for the purpose of defending it from an impending invasion by the Japanese. The Hong Kong garrison was forced to surrender to the Japanese Imperial Forces on 25 December 1941. The surviving members of the Canadian Hong Kong forces were interned in camps operated by the Japanese, both in Japan and in Japanese administered territories. They were liberated in September 1945, following the Japanese surrender to the Allied Forces.

2.2 The authors submit that the conditions in the Japanese camps were inhuman. Maltreatment and torture took place regularly. Prisoners were forced to march long distances under hard conditions, many of those dropping out being killed by the guards. They were forced to do slave labour in tropical heat without protection against the sun. Lack of housing, food, and medical supplies led to diseases and deaths. In this context, reference is made to the judgment of the International Military Tribunal for the Far East of November 1948, which found that it was general practice and indeed policy of the Japanese forces to subject the prisoners of war to serious maltreatment, torture and arbitrary executions, in flagrant violation of the laws of war and humanitarian law See pages 395 to 448 of the judgment..

2.3 As a consequence of the barbaric conditions in the camps, the released prisoners were in bad physical condition, suffered severely from malnutrition with vitamin deficiency diseases such as beri-beri and pellagra, malaria and other tropical diseases, tuberculosis, tropical sores and the effects of physical ill-treatment. It is submitted that as a direct consequence, the Hong Kong veterans still suffer significant residual disabilities and incapacities.

2.4 The Peace Treaty of 1952 between Japan and the Allied Forces did not include appropriate compensation for the slave labour and brutality experienced by the Hong Kong veterans. Article 14 of the Peace Treaty gave Canada the right to seize Japanese property in Canada. The total amount thus appropriated was slightly over three million dollars. With this money the War Crimes Fund was constituted, which granted the Hong Kong veterans a payment of $1.00, later raised to $1.50, per day of imprisonment. No other source of funds was available to satisfy the claims of the veterans and no attempt was made by the Canadian Government to obtain funds from Japan, as it was the Government's position that it had waived all claims against Japan in signing the Peace Treaty.

2.5 The authors submit that the compensation received falls far short of what can be considered adequate and reasonable. They claim that a payment of $18.00 per day (approximately $23,940 in total per person) could be considered an appropriate level of compensation for their sufferings.

2.6 The authors refer to a publication by Carl Vincent "No Reason Why" and note that the book shows that they and their colleagues were sent to Hong Kong for purely political reasons at a time when it was known that the Hong Kong garrison could not withstand an attack from the Japanese troops and that there was no hope of evacuating the Hong Kong defenders. It is therefore argued that the Canadian Government was from the outset responsible for their plight and that the disregard for their safety is exacerbated by the Government's later failure to protect their interests in accordance with international law at the time of the entry into force of the Peace Treaty with Japan and its failure to provide appropriate financial assistance and/or compensation.

2.7 In this context, it is pointed out that it has remained the consistent position of the Canadian Government that any reparation to be paid to Canadian prisoners of war was provided for in the Peace Treaty with Japan. The authors reiterate that the Peace Treaty did not encompass the damages suffered by the Hong Kong veterans under the conditions of imprisonment imposed by the Japanese Government during the war and more particularly, that the Peace Treaty did not address the question of indemnification for the gross violations of human rights and slave labour. It is further submitted that as a matter of law the Canadian Government had no legal authority or mandate to waive the veterans' rights to a remedy for the gross violations of their rights. In support of this argument, the authors refer to the Hague Convention of 18 October 1907, the Third Geneva Convention of 1949, Protocol I of the Geneva Convention and the legal commentaries prepared by the International Committee of the Red Cross, as well as to the Study concerning the right to reparation for gross violations of human rights, presented to the Sub-Commission on Prevention of Discrimination and Protection of Minorities by Mr. Theo van Boven.

2.8 Upon their return to Canada, the authors continued to suffer from severe physical, mental and psychological problems as a direct consequence of the 44 months of imprisonment and slave labour imposed upon them by the Japanese. It is submitted that the Canadian authorities failed to recognize the nature and extent of the residual disabilities and incapacities suffered by them. A study undertaken by the Canadian Pension Commission in 1966 concluded that the health problems of Hong Kong veterans were a direct consequence of their sufferings in the internment camps. In 1968, the Committee to Survey the Work and Organization of the Canadian Pension Commission recognised that the Hong Kong veterans had not received adequate pensions and that their disabilities were constantly under-assessed. Amendments to the Pension Act and the Prisoners of War legislation, in March 1971, improved benefits. However, the authors emphasize that these legislative provisions did not specifically refer to any form of compensation for the slave labour carried out by them, nor were these funds paid as indemnification for the violations of international law experienced by them. Moreover, the authors state that the residual effects of their disabilities were not fully addressed by the statutory reforms and they submit that at present they continue to be unable to obtain pension entitlement for a significant number of conditions suffered by them.

2.9 The authors indicate that, in 1987, the Hong Kong Veterans Association of Canada in cooperation with The War Amputations of Canada submitted a claim to the United Nations Commission on Human Rights, in accordance with the procedure established by ECOSOC's Resolution 1503 (XLVIII), with respect to the gross violations of human rights committed by Japan in relation to the incarceration of Canadian servicemen held as prisoners of war. In 1991, the Sub-Commission on Prevention of Discrimination and Protection of Minorities concurred with the interpretation of its Working Group on Communications that "the procedure governed by Economic and Social Council Resolution 1503 (XLVIII) could not be applied as a reparation or relief mechanism in respect of claims of compensation for human suffering or other losses which had occurred during the Second World War".

2.10 The authors claim that they have exhausted all available domestic remedies and refer to the lengthy exchange of correspondence between representatives of the Hong Kong Veterans Association of Canada and the Canadian Government.

The complaint:

3.1 The authors claim that the Canadian Government continues to deprive them of their right to a remedy, in violation of article 2, paragraph 3(a), of the Covenant. In this context, they submit that the practical result of the failure of the Canadian Government to recognise that it had no legal authority to waive the authors' rights to compensation in the Peace Treaty with Japan, and its subsequent failure to support their claim against Japan in the appropriate international fora, has left them without an effective remedy for the gross violations of their human rights. It is submitted that the Government continues to support Japan's defence that the 1952 Peace Treaty effectively terminates Japan's legal responsibility to former Prisoners of War and internees. In May 1991, the Canadian Prime Minister advised the Japanese Government that it remained Canada's position that the Japanese Government had satisfied its obligations regarding reparations as a consequence of the 1952 Peace Treaty. Moreover, the Prime Minister indicated that any consideration of compensation or reparation would be the responsibility of Canada. However, in response to requests by the Hong Kong Veterans Association, the Government has indicated that it is unwilling to consider further compensation.

3.2 The authors further claim that the Canadian Government's failure to provide them with proper financial assistance and compensation during the many years following the war and the pension deficiencies still being suffered to the current day constitute a violation of article 26 of the Covenant. They contend that they did not receive appropriate entitlement and/or were underassessed for their specific disabilities in comparison to other Canadian veterans who returned from the war.

3.3 The authors emphasize that the actions and failures of the Canadian Government described above, although occurring before the entry into force of the Covenant and the Optional Protocol, have continuing effects which in themselves constitute a violation of the Covenant. In this context, it is argued that the authors continue to suffer from physical and mental defects caused by their experiences in the Japanese camps. To support this argument, reference is made to a report prepared by Prof. Gustave Gingras "The sequelae of inhuman conditions and slave labour experienced by members of the Canadian Components of the Hong Kong Forces, 1941-1945, while prisoners of the Japanese Government". The authors submit that these continuing and ongoing effects of the violations suffered by them constitute in themselves a violation of the Covenant on and after 19 August 1976, the date of entry into force of the Covenant and the Optional Protocol for Canada. In this context, the authors refer to decisions of the Human Rights Committee in communications No. 123/1982 (Manera v. Uruguay), No. 196/1985 (Gueye v. France), No. 6/1977 (Sequeira v. Uruguay) and No. R6/24 (Lovelace v. Canada).

Additional information provided by the authors:

4.1 On 10 February 1994, the Committee's Special Rapporteur for New Communications requested the authors, under rule 91 of the Committee's rules of procedure, to furnish additional information with regard to their claim that they did not receive appropriate pension entitlements compared to other Canadian veterans.

4.2 By submission, dated 25 March 1994, the authors state that they are victims of discrimination since they cannot qualify for additional benefits (the Exceptional Capacity Allowance, the Veterans Independence Program, and the additional primary disability or consequential disability pensions available under the Pension Act) which are available to other veterans, because of the different legal basis of their prisoner of war pensions.

4.3 In this context, they explain that the Exceptional Incapacity Allowance, which is granted to veterans who suffer from extraordinary incapacity, is only available for persons who have a 100% pension under the Pension Act. Since the Veterans Pension Act does not recognize the Hong Kong Veterans Prisoner of War benefit as a form of pension for the purpose of the Exceptional Incapacity Allowance, the Hong Kong Veterans cannot qualify, although the majority would meet the other requirements for the allowance.

4.4 The Veterans Independence Program, which allows veterans to remain self-sufficient by providing certain services, bases the applicability of the program, on a "war-related pensioned condition". Since the Canadian Government does not recognize the situation of the Hong Kong Veterans as such condition, they are excluded from benefitting from the program, notwithstanding the fact that the Hong Kong Veterans' Prisoners of War benefit was intended to reflect a form of pension directly related to their wartime experience.

4.5 As to additional pensions available under the Pension Act, it is submitted that the Canadian Pension Commission is not prepared to grant entitlement for many of the particular pension applications from Hong Kong Veterans. This refusal is based on the premise that the Hong Kong Veterans have received pension entitlement as part and parcel of their Prisoner of War benefit.

4.6 It is further argued that the legislation relating to Prisoner of War Compensation Benefits is in itself discriminatory, since the basis for the compensation is directly related to the period of time spent as a prisoner of war, without taking into account the nature of the prisoner of war experience (the gross violations of human rights suffered by the Hong Kong Veterans).

4.7 It is finally argued that the authors are victims of discrimination because of Canada's policy of selective support as to the question of reparations arising from World War II. In this connection, it is submitted that the Canadian Government has actively supported the payment of reparations by the Federal Republic of Germany to victims of gross human rights violations committed by Nazi Germany but has failed to provide similar support for claims by the victims of human rights violations by Japan. In this context, the authors also refer to compensatory payments by the Canadian Government to Japanese Canadians, who during the war had been interned, deported, or deprived of their property, solely because of their ancestry.

State party's observations on admissibility and authors' comments thereon:

5.1 By submission of 21 September 1994, the State party addresses the admissibility of the communication and provides background information on the overall scheme of veterans compensation in Canada.

5.2 Pursuant to the Canadian Pension Act, a wide variety of benefits are available to war veterans. These benefits are exempt from taxation and in addition to income received from employment or other sources. The State party distinguishes the following benefits:

5.3 Disability pensions are awarded for specific disabilities resulting from military service. The amount is related to the extent of the veteran's disabilities. Of the 547 former prisoners of war who were incarcerated by the Japanese for more than a year (encompassing all Hong Kong veterans) 180 receive a 100% pension and 91 receive a 50% pension, whereas the remaining former prisoners receive amounts in between. In May 1991, all Hong Kong veterans were automatically assessed at a minimum of 50% disability pension for the condition of avitaminosis.

5.4 In 1971, all former prisoners of war of the Japanese who had been held captive for one year or more, including all Hong Kong veterans, and who had an assessable disability were given prisoner of war compensation equivalent to 50% disability pension. However, no additional POW compensation was given to those who already received a disability pension of 50% or more. In 1976, the legal basis for the POW compensation was changed, the requirement of assessable disability was eliminated, and POW compensation was provided to former prisoners of all WW2 enemy powers. However, substantially higher rates were maintained for former prisoners of Japan in light of the particular hardships they suffered. As a result, Hong Kong veterans were entitled to 50% POW compensation, whereas former prisoners of war of European countries received from 10% to 20%, depending on the length of their incarceration. Furthermore, the POW compensation was granted in addition to any disability pension, up to the equivalent of a 100% disability pension. In 1986, this ceiling was removed and POW compensations are now being paid regardless the percentage of the disability pension received. This means that the least disabled Hong Kong veterans receive the equivalent of 100% disability pension (50% automatic disability pension plus 50% POW compensation), and the most severely disabled Hong Kong veterans 150% disability pension.

5.5 A veteran who receives the maximum war disability pension may also be awarded an additional Exceptional Incapacity Allowance. The State party points out that 105 former prisoners of war of the Japanese receive such allowance.

5.6 A pensioned veteran who is totally disabled and requires an attendant qualifies for an additional Attendance Allowance. The State party submits that 172 prisoners of war of the Japanese receive this allowance.

5.7 The Veterans Independence Program pays for home support services for pensioned veterans, such as housekeeping and "meals on wheels". Entitlement to this program is based on the nature of the disability and the needs of the veteran.

5.8 The War Veterans Allowance is an income-tied allowance aimed at assisting Canadian veterans who are incapable of maintaining themselves economically. Because of their other pension entitlements, Hong Kong veterans are precluded from qualifying for this allowance.

5.9 Further benefits for pensioned veterans include supplemental health benefits, clothing allowances and counselling.

5.10 Following the confiscation of Japanese assets in Canada, pursuant to the 1952 Peace Treaty, the Hong Kong veterans received a lump sum compensation of $1.50 per day of incarceration, in recognition of the undue hardship suffered.

6.1 The State party notes that the three authors claim to act on behalf of all Hong Kong veterans, but that they have not identified the remaining members of the group, nor have they demonstrated their authority to act on behalf of these other members. The State party recalls that a communication must be submitted by the individual alleging to be a victim or by a duly authorized representative and refers to the Committee's jurisprudence in this regard. The State party argues therefore that to the extent that the communication is filed on behalf of all Hong Kong veterans, it is inadmissible because the authors have no authority to act.

6.2 As regards the authors' claim that the Canadian Government waived their right to a remedy and that they were inadequately indemnified under the 1952 Peace Treaty, in violation of article 2, paragraph 3(a), of the Covenant, the State party submits that the compensation received by the authors pursuant to the Peace Treaty did not amount to a violation of any individual human right or freedom, but represented a portion of the compensation for their suffering. The State party recalls that there is no autonomous right to compensation under the Covenant and refers to the Committee's jurisprudence with respect to communications Nos. 275, 343, 344 & 345/1988. The State party argues therefore that this part of the communication is inadmissible as incompatible ratione materiae. In this context, the State party denies that it waived the authors' right to a remedy by entering into the 1952 Peace Treaty with Japan, and states that the Peace Treaty actually facilitated the availability of an expeditious remedy for the authors.

6.3 Further, the State party argues that the authors' claim relating to the 1952 Peace Treaty is inadmissible ratione temporis. Reference is made to the Committee's jurisprudence that it is not competent to examine allegations relating to events which took place before the entry into force of the Covenant and the Optional Protocol, unless the alleged violation continues or has effects which themselves constitute a violation after the date of entry into force. The State party points out that the mistreatment suffered by the authors took place between 1941 and 1945 at the hands of the Japanese, and that this mistreatment is not in any way continuing. The 1952 Peace Treaty, on which the authors base their claim, was also concluded before the entry into force of the Covenant and the Optional Protocol. The State party submits that an argument of inadequate compensation cannot turn these past events into a continuing violation for the purposes of the Covenant. The State party states that the jurisprudence cited by the authors (No. 123/1982 (Manera v. Uruguay), No. 196/1985 (Gueye v. France), No. 6/1977 (Sequeira v. Uruguay) and No. R6/24 (Lovelace v. Canada)) does not support their claim, since the first two cases concerned violations resulting from the continued application of a law, and the other two cases only reinforce the argument that the Committee can only examine violations occurring after the entry into force.

6.4 With regard to the authors' claim that they are discriminated against because POW compensation is not treated as part of their disability pension and that they are therefore not eligible for additional benefits such as Exceptional Incapacity or Attendance Allowances, the State party refers to the Committee's interpretation of article 26, and states that the authors must submit sufficient evidence in substantiation of their allegation to show a prima facie case. According to the State party, they would have to show that a distinction is made which impairs the enjoyment of their rights and freedoms on an equal footing with other persons, that this distinction is not reasonable or objective and that the aim of the distinction is illegitimate under the Covenant. The State party points out that POW compensation is available to all former prisoners of war, not just to Hong Kong veterans, and that no recipient may treat it as part of a disability pension. The State party argues therefore that the authors have not demonstrated a distinction which adversely affects the Hong Kong veterans, nor have they demonstrated that the basis on which each veteran benefit program is allocated, is unreasonable or illegitimate. The State party argues that the criteria used for the allocation of benefits (as set out above) are not discriminatory and fully comply with the Covenant. Moreover, the State party points out that the authors have not identified specific disabilities for which they are not compensated, nor have they outlined the benefits they personally receive from the Government's veterans programs. As regards the authors' other allegations of discrimination regarding payments of Japanese Canadians interned during WW2 in Canada and regarding the position of Canadians with claims against Germany, the State party submits that these situations are materially different from the authors' and therefore irrelevant. The State party concludes that the authors have failed to substantiate, for purposes of admissibility, their claim that they are victims of discrimination, in violation of article 26 of the Covenant.

6.5 Moreover, the State party argues that the authors have failed to exhaust all domestic remedies as required by article 5, paragraph 2(b), of the Optional Protocol. In this connection, the State party points out that the right to equality before and under the law and the right not to be discriminated against are protected by the Canadian Charter of Rights and Freedoms which was entrenched as part of Canada's constitution in 1982. Pursuant to section 24 of the Charter anyone whose rights and freedoms, as guaranteed by the Charter, have been infringed or denied may apply to the court in order to obtain a remedy. Accordingly, it is open to the authors to commence an action in the Federal Court to obtain a remedy for the alleged discrimination against them.

6.6 Furthermore, veterans may dispute the nature and extent of their entitlement before the Canadian Pension Commission, an independent quasi-judicial federal agency which is responsible for the initial adjudication of both entitlement and assessment claims. From the Commission's decisions, appeal is open to the Veterans Appeal Board, whose decisions are subject to review by the Federal Court-Trial Division and, with leave, to the Federal Court-
Appeal Division, whose decisions may be appealed, with leave, to the Supreme Court of Canada. In this context, the State party submits that all claimants are entitled to free legal assistance for applications or appeals made to either the Canadian Pension Commission or the Veterans Appeal Board.

7.1 In their comments on the State party's submission, the authors reiterate that for 30 years they received totally inadequate pensions and that a significant element of discrimination remains today in the application of the Veterans Pension Act to Hong Kong Veterans when compared to the pension treatment of other severely disabled veterans. In this context, the authors note that only a small percentage (20 to 30%) of Hong Kong veterans have actually qualified for special allowances such as the Incapacity Allowance and the Attendance Allowance. They claim that the majority of Hong Kong veterans would have received these forms of allowance many years ago save and except for the discriminatory aspects of the current Pension Act, which distinguishes between the prisoner of war allowance which all Hong Kong veterans receive and the disability pension. Furthermore, it is submitted that the Government does not recognize the POW benefit in relation to the concept of "war related pension condition" when assessing eligibility for the Veterans Independence Program.

7.2 The authors reiterate that the State party had no right to waive the rights of the Hong Kong veterans through the 1952 Peace Treaty. It is argued that this breach has the continuing and ongoing effect of depriving the Hong Kong veterans of the specific right to a remedy for the gross violations committed against them by the Japanese.

7.3 As regards their standing, the authors submit that the Hong Kong Veterans Association has passed and ratified resolutions authorizing the authors to act on their behalf in relation to these communications.

7.4 The authors further state that their communication alleges a violation of article 26 in conjunction with article 2, paragraph 3(a), of the Covenant, and is therefore not solely based on article 2(3).

7.5 As regards the State party's argument that the communication is inadmissible ratione temporis, the authors state that the State party's actions (entering into the 1952 Peace Treaty with Japan, its subsequent failure to provide appropriate financial assistance, its refusal to support the claim of the Hong Kong veterans against Japan) have resulted in a continuing and ongoing violation of their right to a remedy pursuant to article 2(3)(a) and has amounted to a form of discrimination in violation of article 26 of the Covenant. In this context, the authors refer to the severe residual disabilities and incapacities suffered by the Hong Kong veterans until the present day. Furthermore, Canada's refusal to support their claim in the international fora and its maintenance of discriminatory legislation in regard to the Hong Kong veterans pension rights are said to reflect a continuing and ongoing violation of the Covenant.

7.6 As regards the State party's argument that all prisoners of war are similarly treated and that there is therefore no discrimination, the authors state that the appropriate standard for analysis relates to the difference in treatment between Canadian POWs and other severely disabled veterans. It is stated that the discrimination, described in detail in the authors' original submission, affects the Hong Kong Veterans particularly because of the severe residual disabilities and incapacities suffered, as a consequence of which they would have qualified for the Special Allowances if it were not for discriminatory provisions excluding them. In this context, the authors refer to the detailed medical history relevant to the Hong Kong veterans' residual disabilities and incapacities which they submitted with their original communication.

7.7 As regards the exhaustion of domestic remedies, the authors state that for 50 years they have pursued without success a remedy in relation to their claim, and that they have petitioned the Government on numerous occasions in order to obtain legislative reform, all to no avail. The authors therefore argue that the application of domestic remedies in their case has been unreasonably prolonged. Moreover, the authors note that their claim involves the application of international legal principles, over which the Canadian courts have no authority to rule. Furthermore, the authors note that the Canadian Pension Commission and the Veterans Appeal Board have no authority to remove the discriminatory aspects of the legislation. The authors conclude therefore that, for all practical purposes, they have exhausted domestic remedies.

Issues and proceedings before the Committee

8.1 Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with article 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

8.2 Part of the authors' communication relates to the alleged waiver of their right to compensation by Canada through the 1952 Peace Treaty with Japan. In this connection, the Committee observes that the alleged failure by Canada to protect the authors' right to obtain compensation from Japan cannot be seen ratione materiae as a violation of a Covenant right. Further, the Committee recalls its established jurisprudence that it is precluded from examining a communication when the alleged violations occurred before the entry into force of the Covenant. See also the Committee's decisions, dated 26 March 1990, declaring inadmissible communication No. 275/1988 (S.E. v. Argentina) and communications Nos. 343, 344 and 345/1988 (R.A.V.N. et al. v. Argentina). In the present case, the authors have not shown how any of the acts done by Canada in affirmation of the Peace Treaty after the entry into force of the Covenant could entail continuing effects which in themselves would constitute violations of the Covenant by Canada. This part of the authors' communication is therefore inadmissible.

8.3 The authors further claim that they are victims of discrimination, because their POW pension is not counted as a disability pension and does not entitle them to supplementary allowances available only to persons receiving a 100% disability pension. The State party has indicated that the authors have not exhausted domestic remedies available to them in relation to their complaint of discrimination, in particular, that they have not tried to obtain a remedy under the Canadian Charter of Rights and Freedoms. The authors have stated that, for the past 50 years, they have pursued domestic remedies through political channels. The authors, however, have failed to indicate what concrete steps they have taken to challenge the alleged discrimination against them before the Canadian Courts, as would be possible under the Canadian Charter. The Committee concludes therefore that the communication is inadmissible under article 5, paragraph 2(b), of the Optional Protocol. In the circumstances, the Committee need not address other admissibility criteria, such as whether the authors have substantiated their claim for purposes of article 2 of the Optional Protocol.

9. The Human Rights Committee therefore decides:

(a) that the communication is inadmissible;

(b) that this decision shall be communicated to the State party, to the authors and to the authors' counsel.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly.]