Sunday, November 16, 2014
CERD: How Independent Civic Groups' Reports Apply the Convention on the Elimination of Racial Discrimination to Japan's Controversy Over Hate Speech Aimed at Ethnic Koreans
We are pleased to share this guest blog post from Andrew Macas of Chicago, who describes research on hate speech against Koreans in Japan.
How Independent Civic Groups' Reports Apply CERD to Japan's Controversy Over Hate Speech Aimed at Ethnic Koreans
Japan became a party to the International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195 (“CERD”) on December 15, 1995.1 Japan made a reservation to CERD's Art. 4(a) and (b) prohibitions against “propaganda activities” and “incitement to racial discrimination[.]”2 The reservation limits Art. 4(a) and (b)s' application “to the extent that fulfillment of the obligations is compatible with the guarantee of the rights to freedom of assembly, association and expression and other rights under the Constitution of Japan[.]”3
The Committee on the Elimination of Racial Discrimination monitors implementation of CERD.4 Japan must periodically report on measures it takes to comply with CERD.5 Japan's reporting data and documentation for CERD is available on the UN's human rights website.6
NGOs on both sides of the hate speech issue chime in on the Japanese Government's role in the issue.
Arguments for Koreans Needing More Protection from Hate Speech
1. The Japan Federation of Bar Associations (JFBA)
JFBA provides several examples of the need for more protection.7 This need for protection arises out of, inter alia, North Korea's missle launches and Nuclear testing in recent years.8 JFBA first brings up the Japanese Government's failure to engage in “awareness-raising activities to prevent the occurrence of harassment against Korean schoolchildren and students in Japan.”9 The Government did not even provide “details of the content and scale of 'enlightenment activities' stated in the [7-9 State Party's Report]” or study data for counseling it provides to Koreans.10 JFBA then lists several instances of violence aimed at Korean schools:
Immediately after it was reported that [North Korea] had a missile-launching test on July 5, 2006, Korean schools received a large number of threatening and silent phone calls, and derogatory e-mails only within the three weeks from July 5 to July 26. One of the threatening calls made such remarks as 'I am going to throw a firebomb into your school' and 'five high school students will be killed within a week.' There was also such harassment as marks in red paint on the entrance gates. There were 121 cases in total only which the schools reported to the central headquarters of the teachers’ union for [North Korea] residents in Japan. In some cases, defamatory bills were posted on the street. In Osaka, a boy in the second grade at elementary school was beaten by Japanese, and also in Aichi, a boy in junior high school was beaten.11
JFBA also provides an example of violent protesting and police inaction at a Korean elementary school:
The group interfered with the school’s educational activities on that date, and committed assaults such as throwing the platform for the morning assembly, which resulted in the arrest of four people for crimes such as forcible obstruction of business. Despite witnessing the apparent insults and forcible obstruction of business, the police at the scene did not arrest the group members on the spot, and even failed to deter them from such crimes. … [T]he police did not promptly prevent the group from committing the crime or arrest them. Partly because of not being immediately arrested, the same activist group once again intruded into the Kyoto No.1 Korean Elementary School in January 2010 to unleash a torrent of abuse.12
For these reasons, JFBA recommended that the Government study these violent situations in order to find solutions and “implement more decisive and effective measures to eliminate them, including criminal punishment of assailants.”13
2. The Committee on the Protection of Human Rights of the Central Head Office of the Korean Residents Union in Japan (MINDAN)
MINDAN also called on the Japanese Government to do more to prevent hate speech.14 “[MINDAN] was founded in October 1946 as an autonomous organization for Korean residents in Japan who were coercively or semi-coercively brought to Japan due to the Japanese colonial rule of Korea . . . and [who] were unable to return to Korea after WWII.”15 MINDAN list seventeen “examples of hate speech[,]” such as:
1) August 25, 2012 Shin-Okubo, Tokyo
- - Rally name: 'Subjugating the Koreans: Citizens' March in Shin-okubo'
- - Main hate speech
- 'Kill them all!' 'We're gonna kill you!' 'Burn them alive!' 'Death to Koreans'
2) October 27, 2012 Uguisudani, Tokyo
- - Rally name: 'Immediately Drive Out the 50,000 Modern Koreans and Comfort Women! Citizens' March in Uguisudani'
- - Main hate speech
- 'Beat them to death!' 'Choke them to death!' 'Kill all Koreans!'
3) February 9, 2013 Shin-Okubo, Tokyo
- - Rally name: 'Drive Out the Lawless Koreans! Rally to Eradicate Korean Influence in Shin-Okubo'
- - Main hate speech
- 'Massacre them all!' 'Hang the Koreans! Poison them! Let them jump off a building!'
- 'Good or Bad Koreans, it doesn't matter, kill them all!' ….
5) February 24/March 31, 2013 Tsuruhashi, Osaka
- A junior high school female student gives a speech in the street, and says, 'Forget about the Nanjing Massacre! Do a Tsuruhashi Massacre!'; 'We're going to massacre the Koreans!'16
MINDAN insists that this speech which crosses the line of “'Koreans must leave Japan!'” and “call[s] stridently for ethnic massacres” poses special dangers when it occurs in heavily Korean-populated neighborhoods.17 This situation creates “a pressing need to  employ human rights education in public institutions and teach the importance of creating a society in which human rights violations do not take place and people can mutually co-exist.” Two reasons for doing so are to reduce “the potential [of] escalat[ing ]violence in the future” and to protect Japan's image for the upcoming 2020 Olympics.18
MINDAN also called on the Japanese Government to retract its Article 4(a) and (b) reservations and to implement “[s]trict legal regulations . . . to protect Japan's foreign minorities, children, youth and the democratic society here[ in Japan.]”19
Arguments for Koreans Needing Less Protection from Hate Speech
1. The Nadeshiko Action Japanese Women for Justice and Peace Group (JWJP, hereinafter, “Nadeshiko”)
Nadeshiko challenged the need for protecting Koreans.20 Nadeshiko asserts that “Korean residents in Japan have enjoyed their privileges [more] compared to other foreign residents and even to [those of] Japanese nationality.”21 Nadeshiko frames the issue as (1) "a racial privilege rather than as hate speech” and (2) “[t]he racial privileges given to the Korean residents in Japan is a kind of racism guaranteed by the state.”22
Nadeshiko defends the demonstrations of the Zaitokukai, “an association protesting privileges of Korean residents[,]” civic group.23
The very important thing is that radical or not, the legal demonstration under permission of the authorities is the right of liberty of expression or of the freedom of assembly [sic], the basic human rights guaranteed by the [Japanese] Constitution.
Some groups, which defend their privileges, attack these legal demonstrations under the pretext of 'Hate speech', obstructing with a kind of violence and violating the right of liberty of expression. It's these groups which do hate speeches masquerading as anti-hate speech.24
Nadeshiko cites two protest incidents, a racially-motivated knife attack by a Korean resident of Japan, a Youtube video, and eight photos in support of these propositions.25 The Youtube link, “http://youtu.be/aRPAe9yapwU” [sic], leads to a slightly different URL with the same video described in the Nadeshiko Report.26 The Video shows several segmented and often low-resolution clips of counter protesters as seen from the street.27
Nadeshiko finally calls for the Committee to recommend both “[t]aking measures to prevent violence against legal demonstrations or assembly guaranteed by the [Japanese] Constitution” and “[r]eview[ing] the privilege given to Korean residents in Japan [and] considering it as a kind of racism.”28
2. The Civic Activity [sic] for Appealing to Abolish The Privileges of Koreans in Japan (Zaitokukai)
Zaitokukai contests the “special rights” of Korean residents of Japan on the basis of Article 1(4) of CERD.29 That Article provides that:
4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.30
Zaitokukai first recommends heavily regulating pachinko gaming because of both its negative health effects and because it provides “funding for the North Korean criminal groups that have caused hundreds of abductions.”31 It contests allegations of hate speech at its rallies because “the aggressive phrases like 'Kill Koreans,' 'Cockroaches,” etc. were expressed by some participants of the demonstrations, and therefore not the appeal points of the demonstrations [sic].”32 It casts the blame for violence at its rallies on the “violent obstructions by the counter action groups.”33 It accuses the Chosan and MINDAN civic groups, which represent Koreans, of “handl[ing] violent men like the current counter action members as mentioned above, in order to force their opinions on Koreans in Japan.”34
Zaitokukai finally recommends registering Korean permanent residents of Japan “as citizens of South Korea within three years” so that “they do not need the current privileges” that they have in Japan.35
Even one issue such as the hate speech here may have many parties with a stake in how treaties and the law are interpreted.
1https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en (hereinafter, “CERD List”) (listing Japan's accession to CERD and status as of “13-11-2014 12:06:05 EDT) (last visited Nov. 13, 2014).
2CERD List (listing Japan's reservation to CERD), Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195 (hereinafter, “CERD”), Art. 4(a), (b).
4Monitoring the core international human rights treaties, http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx (last visited Nov. 13, 2014).
5CERD, Art. 9(1).
6http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx (hereinafter, “Reporting List”) (providing a list of treaties Japan participates in and reporting documents after selecting “Japan” from the “Please select a country” drop-down menu) (last visited Nov. 13, 2014).
7 Japan Federation of Bar Associations Report on Response to the Seventh, Eighth and ninth Report of the Japanese Government of the International Convention on Elimination of All Forms of Racial Discrimination, JFBA/36/14 (Jul. 14, 2014) (hereinafter, “JFBA Report”) (available in English athttp://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCERD%2fNGO%2fJPN%2f17649&Lang=en) (last visited Nov. 15, 2014).
8JFBA Report, p. 17-18.
9JFBA Report, p. 17-18, CERD/C/JPN/7-9, Reports submitted by States parties under article 9 of the Convention Seventh to ninth periodic reports of States parties due in 2013 Japan (Jan. 14, 2013) (hereinafter, “7-9 State Party's Report”) (available in four languages including English at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fJPN%2f7-9&Lang=ensymbolno=CERD%2fC%2fJPN%2f7-9&Lang=en) (last visited Nov. 13, 2014).
10JFBA Report, p. 18; See 7-9 State Party's Report.
11JFBA Report, p. 18.
12JFBA Report, p. 18-19.
13JFBA Report, p. 20.
14Report on The Issue of Racism and Hate Speech in Japan (Jul. 18, 2014) (hereinafter, “MINDAN Report”) (available in English at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCERD%2fNGO%2fJPN%2f17699&Lang=en) (last visited Nov. 15, 2014).
15MINDAN Report, p. 2.
16MINDAN Report, p. 5-7.
17MINDAN Report, p. 9-10.
18MINDAN Report, p. 10.
19MINDAN Report, p. 22-23.
20Comment on The Issue of Hate Speech Masquerading as Anti-Hate speech by Privileged Korean Residents in Japan for 85th session (11 to 29 August 2014) in The International Convention on Elimination of All Forms of Racial Discrimination (Jul. 24, 2014) (hereinafter, “Nadeshiko Report”) (available in English at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCERD%2fNGO%2fJPN%2f17777&Lang=en) (last visited Nov. 15, 2014).
21Nadeshiko Report, p. 3.
22Nadeshiko Report, p. 4-5.
23Nadeshiko Report, p. 3.
24Nadeshiko Report, p. 3.
25Nadeshiko Report, p. 4, 6.
26Nadeshiko Report, p. 6, CH True Japan, Hate Speech Masquerading as Anti-Hate Speech, (hereinafter, “Video”) (available at https://www.youtube.com/watch?v=aRPAe9yapwU&feature=youtu.be) (last visited Nov. 15, 2014).
28Nadeshiko Report, p. 5.
29Report on The Privileges of Koreans in Japan, p. 2 (submission and publication dates unavailable) (hereinafter, “Zaitokukai Report”) (available in English at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCERD%2fNGO%2fJPN%2f17756&Lang=en) (last visited Nov. 15, 2014), CERD, Art. 1(4).
30CERD, Art. 1(4) (emphasis added).
31Zaitokukai Report, p. 2-3.
32Zaitokukai Report, p. 5.
33Zaitokukai Report, p. 5.
34Zaitokukai Report, p. 7.
35Zaitokukai Report, p. 9.
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