Report No. 26 (2021) IACHR. Petition No. 12.545 (United States)

• Year: 2021
• Court: Inter-American Comission of Human Rights
• Case Type: Merits

REPORT No. 26/20

CASE 12.545

MERITS REPORT (PUBLICATION)

ISAMU CARLOS SHIBAYAMA, K.J.S., AND TAKESHI JORGE SHIBAYAMA

UNITED STATES OF AMERICA

OEA/Ser.L/V/II

Doc. 36

A. 22, 2020

Original: English

Approved electronically by the C. on A. 22, 2020

Cite as: IACHR. Report No. 26/20. C. 12.545. Merits (PUBLICATION). I. Carlos Shibayama et al. United S.s. A. 22, 2020.

www.cidh.org

INDEX

I. SUMMARY 2

II. POSITIONS OF THE PARTIES 2

A. Petitioners 2

B. S. 3

III. PRIOR CONSIDERATION 4

IV. FINDINGS OF FACT 4

A. Background 4

B. The Shibayama brothers 6

C. The Shibayama family’s abduction from Peru, internment at Crystal City, Texas, and life upon release from internment 6

D. Claims for redress under the Civil Rights Act of 1988 and subsequent legal actions 9

E. before the Court of Federal Claims 10

V. ANALYSIS OF LAW 12

A. Application of the American Declaration and interpretation in light of developments in international human rights law since its adoption 12

B. to equality before the law (Art. II), in relation to the right to a fair trial and effective remedy (Art. XVIII) 13

1. General considerations regarding equality before the law and the right to an effective remedy 13

2. The Shibayama brothers’ exclusion from the CLA 14

3. The Shibayama brothers’ remaining claims for reparation 15

4. Conclusions 16

VI. ACTIONS SUBSEQUENT TO REPORT No. 154/18 16

VII. ACTIONS SUBSEQUENT TO REPORT No. 99/19 16

VIII. FINAL CONCLUSIONS AND RECOMMENDATIONS: 16

IX. PUBLICATION 17

REPORT No. 26/20

CASE 12.545

MERITS (PUBLICATION)

ISAMU CARLOS SHIBAYAMA ET AL.

UNITED STATES OF AMERICA

A. 22, 2020

1. SUMMARY

1. On J. 11, 2003, the Inter-American C. on Human Rights (the “Inter-American C.” or “IACHR”) received a petition presented by K.P. and the J.ese P. Oral History Project (the “petitioners”) that alleges the international responsibility of the United S.s of America (the “S.” or “U.S.”) for violations of the human rights of I. Carlos (“Arthur”) Shibayama, K.J.S., and T.J.S. (the “Shibayama brothers”).

2. The C. approved its admissibility report No. 26/06 on M. 16, 2006.1 On M. 21, 2006, the C. notified this report to the parties and placed itself at the disposition of the parties to reach a friendly settlement. The parties enjoyed the time periods provided for in the IACHR’s Rules of Procedure to present additional observations on the merits. On M. 21, 2017, the C. held a hearing on the merits of the case. The S. was not present at this hearing. All the information received by the C. was duly transmitted to the parties.

3. Petitioners alleged that the Shibayama brothers and their family, P.s of J.ese ancestry, were kidnapped from Peru by the United S.s and held in U.S. internment camps in Texas during World War II as potential hostages to be exchanged with J.. Following the end of the war, they were released from detention but neither repatriated to Peru nor granted legal immigration status in the U.S., but rather labeled “illegal aliens.” In 1988, the U.S. passed the Civil Rights Act (CLA), which provided some reparation to J.ese Americans who were interned during World War II, but excluded those who were not citizens or permanent residents at the time of their internment, thus excluding many J.L.A., including the Shibayama brothers, and allegedly violating their rights to due process, to an effective remedy, and to equality before the law. The brothers’ claims for reparation remain unredressed to this day.

4. The S. alleged that the exclusion of the Shibayama brothers from redress under the CLA, and their lack of redress to date, does not constitute a violation of equality under the law, as citizenship and legal permanent residency are valid distinctions in the making of laws that require the U.S. government to make payments, and that they have effectively enjoyed their due process and fair trial rights in all legal proceedings relating to the CLA and other related claims brought before the federal courts.

5. On the basis of determinations of fact and law, the Inter-American C. concluded that the S. is responsible for the violation of articles II (equality before the law) and XVIII (fair trial and effective remedy) of the American Declaration on the Rights and Duties of Man (the “American Declaration”). The C. formulated the corresponding recommendations to the S..

2. POSITIONS OF THE PARTIES

1. Petitioners

6. Petitioners alleged that the Shibayama brothers and their family, P.s of J.ese ancestry, were kidnapped from Peru by the United S.s and held in the U.S. internment camp at Crystal City, Texas from M. 23, 1944 to September 9, 1946. They alleged that the Shibayamas, like more than 2,200 Latin Americans of J.ese ancestry from 13 different Latin American countries, were kidnapped and interned by the U.S. for use in hostage exchanges with J. during this period. They alleged that this scheme constituted an ethnic cleansing scheme “under which whole communities of L.A. of J.ese ancestry were arrested under a United S.s plan, removed from their countries, and held in detention camps in Panama and the United S.s pending being sent to J. to exchange for Americans of European ancestry held by J.” and constitutes “war crimes and crimes against humanity.” They further alleged that these are “continuing violations,” insofar as the U.S. maintains a policy of detaining non-U.S. citizens and “programs directed at violating the rights under international law of persons on the basis of their religion and national origin.”

7. Petitioners alleged that after the end of the war, the Shibayamas were released into the U.S., as Peru would not accept their return and their P. identity documents had been confiscated by U.S. personnel, but were considered “illegal aliens” by the U.S. They indicated that the Shibayama brothers were ultimately able to regularize their immigration status to permanent residence in 1956 by leaving the country and reentering.

8. They alleged that when the Civil Liberties Act of 1988 (CLA), which provided some reparation to persons of J.ese ancestry who were interned during WWII and were U.S. citizens or permanent residents at that time, was passed, the brothers were unable to receive reparation under the Act because of their immigration status at the time of their internment. They alleged that the brothers subsequently elected to opt out of the 1998 M. settlement, which provided a lesser amount of reparation for similarly-situated J.L.A. who had been excluded from reparation under the CLA, in order to pursue their CLA and remaining constitutional and international humanitarian law claims in federal court. They indicated that these claims were dismissed by the Court of Federal Claims in 2003.

9. In this regard, petitioners alleged violations of their right to equality before the law, because they were excluded from receiving reparations under the CLA due to their ethnicity, nationality and immigration status at their time of internment, notwithstanding that they had suffered the same circumstances as other individuals of J.ese ancestry who were eligible to receive reparation. Regarding their right to an effective remedy, they argued that the procedures to receive reparation for the violations alleged “are neither simple nor brief,” and that litigation of their claims has been prohibitively expensive. In this regard, they alleged that the relatively small sum offered by the CLA required petitioners to search for four years before finding a pro bono attorney willing to represent the cases of J.ese Latin Americans denied redress under the CLA; that the M. settlement “added to the named Petitioners’ feeling of being humiliated and dishonored” by the S.; that the M. settlement prohibited attorneys’ fees, disadvantaging the Shibayamas’ ability to continue litigating their claims afterwards; and that the transfer of venue of their case from the district court in California to the Court of Federal Claims in Washington, DC, created additional litigation costs. At the merits hearing, petitioners additionally referred to a lack of full and complete information...