An Asian Pinochet?-Not likely: The unfulfilled international law promise in Japan's treatment of former peruvian president Alberto Fujimori

Stanford Journal of International Law

Volumn 38, Issue 2, 2002, Pages 177-206

  Anderson, Kent ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

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EID: 26044480151     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (286)

1. Regarding the landmark nature of the Pinochet case, see generally William J. Aceves, Liberalism and International Legal Scholarship: The Pinochet Case and the Move Toward a Universal System of Transnational Law Litigation, 41 HARV. INT'L L.J. 129, 166 (2000);
2. Christopher L. Blakesley, Autumn of the Patriarch: The Pinochet Extradition Debacle and Beyond-Human Rights Clauses Compared to Traditional Derivative Protections Such as Double Criminality, 91 J. CRIM. L. & CRIMINOLOGY 1, 18-19 (2000);
3. Christine M. Chinkin, International Decisions, 93 AM. J. INT'L L. 703, 709-11 (1999);
4. Michael J. Kelly, Case Studies "Ripe" for the International Criminal Court: Practical Applications for the Pinochet, Ocalan, and Libyan Bomber Trials, 8 MICH. ST. U.-DCL J. INT'L L. 21 (1999);
5. Vicci L. Marrero, Evolution of British Jurisprudence in the Extradition of General Augusta Pinochet: Application of International Human Rights Treaty Trumps Sovereign Immunity, 8 MICH. ST. U.-DCL J. INT'L L. 119, 122 (1999);
6. Antonio F. Perez, The Perils of Pinochet: Problems for Transitional Justice and a Supranational Governance Solution, 28 DENV. J. INT'L L. & POL'Y 175, 189 (2000);
7. Naomi Roht-Arriaza, The Pinochet Precedent and Universal Jurisdiction, 35 NEW ENG. L. REV. 311, 311 (2001);
8. Ruth Wedgwood, Augusto Pinochet and International Law, 46 McGILL L.J. 241, 244 (2000).
9. But cf. Curtis A. Bradley & Jack L. Goldsmith, Pinochet and International Human Rights Litigation, 97 MICH. L. REV. 2129, 2131-32, 2173-83 (1999) (arguing that although the Pinochet case may be landmark in the United Kingdom or elsewhere, it is not applicable in the United States for domestic constitutional and procedural reasons);
10. Curtis A. Bradley, The "Pinochet Method" & Political Accountability, 3 GREEN BAG 2D 5, 5-6 (Autumn 1999) (finding Pinochet was a landmark, but not necessarily a positive development).
11. In this Article, "the Pinochet case" and its derivatives refers to all of the legal proceedings between 1998 and 2001 involving Pinochet including his indictment by Spain, extradition trial and retrial by the United Kingdom, return to Chile and declaration of being unfit for trial there, and all of the other national and international legal proceedings surrounding these events. "Pinochet" refers to the man and the factual events surrounding him. Similar rules apply for "the Fujimori case" and "Fujimori."
12. In England, see Regina v. Bow St. Metro. Stipendiary Magistrate, [1999] 2 W.L.R. 827 (H.L.).
13. In Spain, see Maria del Carmen Marquez Carrasco & Joaquín Alcaide Fernández, International Decisions, 93 AM. J. INT'L L. 690, 690-96 (1999) (reviewing proceedings against Pinochet in Spain).
14. In Chile, see Clifford Krauss, Chile Court Bars Trial of Pinochet, N. Y. TIMES, July 10, 2001, at A1.
15. Pinochet was also subject to extradition request proceedings in, inter alia, Switzerland, Belgium, and France. See, e.g., Luc Reydams, International Decisions, 93 AM. J. INT'L L. 700, 700-03 (1999) (reviewing proceedings against Pinochet in Belgium);
16. Kim Sengupta, Pinochet Ruling: Straw Facing a Queue for Extradition, INDEP. (London), Nov. 27, 1998, at 7 (noting also efforts to initiate extradition requests in other European countries such as Sweden and Germany).
17. Human Rights Watch, among others, has developed a program for using the Pinochet case as a model and precedent in other similar situations. See Paul Lewis, U.N. Committee, Under Pressure, Limits Rights Groups, N.Y. TIMES, June 22, 1999, at A3.
18. This has already resulted in a number of "African Pinochets," from which the title of this Article draws inspiration. See, e.g., Reed Brody, The Prosecution of Hissene Habre: An "African Pinochet," 35 NEW ENG. L. REV. 321 (2001);
19. Anne Penketh, "African Pinochet" Is Charged over Torture and Killings, INDEP. (London), Feb. 4, 2000, at 15;
20. Africa's Many Pinochets-in-Waiting, ECONOMIST, Feb. 12, 2000, at 47;
21. Inbal Sansani, The Pinochet Precedent in Africa: Prosecution of Hissene Habre, 8 HUM. RTS. BRIEF 32 (2001).
22. See, e.g., Kim Sengupta, Adoringly, the Lady Praised Him for Bringing Democracy to Chile, INDEP. (London), Mar. 27, 1999, at 7.
23. Former U.S. President George Bush also added his voice in support of Pinochet during the British trial. Nicholas Watt, Bush Joins Pinochet Lobby to Bring "Unjust" Detention to End, GUARDIAN (London), Apr. 12, 1999, at 9.
24. Most of the facts noted herein regarding the Fujimori case are widely available in any news database. Unless otherwise provided, see, e.g., Isabel Hilton, The Government Is Missing: Fujimori and Montesinos Vanished Amid Strange Stories of Soothsayers, Bribes, and Secret Videos, NEW YORKER, Mar. 5, 2001, at 58.
25. Takahiro Fukada, Tokyo Denies 1924 Law Means Fujimori Is Not Japanese, AGENCE FR. PRESSE, June 21, 2001, LEXIS, News Library, Agence Fr. Presse File.
26. According to census statistics, 17,598 Japanese nationals and 8790 Japanese-Peruvians resided in Peru in 1940. Manjusha P. Kulkarni, Applicabiity of the Civil Liberties Act to Japanese Peruvians: Seeking Redress for Deportation and Internment Conducted by the United States Government During World War II, 5 B.U. PUB. INT. L.J. 309, 310 (1996) (reviewing early Japanese immigration to Peru);
27. Natsu Taylor Saito, Justice Held Hostage: U.S. Disregard for International Law in the World War II Internment of Japanese Peruvians-A Case Study, 19 B.C. THIRD WORLD L.J. 275, 280 (1998) (reviewing early Japanese immigration to Peru).
28. Japan Confirms Fujimori's Japanese Citizenship, JAPAN ECON. NEWSWIRE, Dec. 12, 2000, LEXIS, News Library, Japan Econ. Newswire File;
29. Fukada, supra note 7.
30. "El Chinito" and the equally common "El Chino" apparently are derogatory terms loosely translated as "the little Chinaman" or similar even less politically correct expressions. Fujimori is said to have an actual fondness for these misnomers. Ranee K.L. Panjabi, Terror at the Emperor's Birthday Party: An Analysis of the Hostage-Taking Incident at the Japanese Embassy in Lima, Peru, 16 DICK. J. INT'L L. 1, 22 (1997).
31. See, e.g., Victor Aritomi Shinto, Long-Standing Bilateral Ties Mark 125th Anniversary, JAPAN TIMES, July 28, 1998, at 8 (noting that inflation under Fujimori went from 7,650% in 1990 to 6.4% in 1997).
32. The 1996-97 hostage crisis was the subject of an extensive secondary source legal critique. Panjabi, supra note 10, at 1.
33. In notable contrast to its approach towards Peru at other times, such as supporting the 2000 election of Fujimori. See infra note 24 and accompanying text. Japan directly criticized this act. Prime Minister Toshiki Kaifu stated: "It is deplorable that President Fujimori, who had been pressing ahead with reforms under the diplomatic system, resorted to such drastic solutions, and since then Japan has repeatedly expressed hope that Peru will return to the democratic system as soon as possible." Toshiki Kaifu, Nations Have History of Cordial Ties, JAPAN TIMES, July 28, 1992, at 12.
34. See, e.g., AMNESTY INTERNATIONAL, PERU: AMNESTY INTERNATIONAL REPORT (2001), http://www.web.amnesty.org/web/ar2001.nsf/webamrcountries/PERU?OpenDocument ("Torture and illtreatment remained widespread.");
35. BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEP'T OF STATE, PERU: COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES (2000), http://www.state.gov/g/drl/rls/hrrpt/2000/wha/827.htm ("The [Peruvian] government's human rights record was poor in several areas, and serious problems remain");
36. HUMAN RIGHTS WATCH, PERU: HUMAN RIGHTS DEVELOPMENTS (1999), http://www.hrw.org/wr2k/americas-08.htm ("Military officials in past years who had been accused of gross human rights violations continued to enjoy impunity.").
37. The close ties between Fujimori and Japan are not rare. Peruvian-Japanese cross immigration has a history of over 100 years. During Fujimori's tenure, the number of Peruvians living in Japan increased from 1000 to 40,000, making it the sixth largest group of foreigners in Japan. Victor Aritomi, Immigration Strengthens Bonds, JAPAN TIMES, July 28, 1999, at 8. Further, in 1990, there were 80,000 Peruvians of Japanese descent living in Peru. Some even assert connections between the two nationalities originating from the Pleistocene period.
38. Shozo Masuda, Japan-Peru Links Are More Than Skin-Deep, JAPAN TIMES, July 28, 1990, at 6.
39. Panjabi, supra note 10, at 29.
40. At his appointment, the press also noted that Aritomi was "a second-generation Japanese ... proficient in Japanese. He has visited Japan 14 times and attended Emperor Akihito's enthronement ceremony in November as a Special Envoy of the Peruvian government." Fujimori's Brother-In-Law Named New Envoy to Japan, JAPAN ECON. NEWSWIRE, Feb. 9, 1991, LEXIS, News Library, Japan Econ. Newswire File.
41. See, e.g., Gaimushō [Japan Ministry of Foreign Affairs], Perū kyōwakoku [Republic of Peru], http://www.mofa.go.jp/mofaj/area/peru/data.html (2001) (noting that for the fiscal year of 1999, Japan's grant aid to Peru consisted of approximately $3598 million in loans, $508 million in grants, and $381 million in technical cooperation);
42. Victor Aritomi Shinto, Nation Achieves Important Advances, JAPAN TIMES, July 28, 1995, at 13 (noting that in addition to economic aid from Japan's primary assistance organizations, the Overseas Economic Cooperation Fund, and the Export-Import Bank of Japan, "[n]o other country in Latin America has received the amount of nonrefundable technical assistance as Peru has in the fields of health, education, and energy" and further adding, "[s]uch generosity is a clear indication of the Japanese government's commitment to support the social and regional development of Peru and the daring initiatives of President Fujimori").
43. See, e.g., Gaimushō, supra note 18 (noting as of 1998 Japanese direct investment in Peru totaling $2065 million and twenty-four Japanese companies with operations in Peru).
44. See, e.g., Fishing Boats May Be Donated to Peru, YOMIURI SHIMBUN, May 30, 1994, at 2 (noting a donation to Peru of "abandoned fiberglass reinforced plastic boats ... littering" the shore of Lake Homana and "creating an environmental problem");
45. Japan to Donate 120 Transport Vehicles to Peru, XlNHUA GEN. NEWS, Sept. 4, 1990, LEXIS, News Library, Arcnws File (noting donation to Peru of trucks for earthquake relief);
46. Japanese Civic Group Donates 1 Mil. Dollars to Peru, JAPAN ECON. NEWSWIRE, Dec. 2, 1990, LEXIS, News Library, Japan Econ. Newswire File (noting a $1 million donation to Peru for education).
47. Panjabi, supra note 10, at 23.
48. After a constitutional tribunal found a third term was unconstitutional in 1997, Fujimori had the congress remove three of the judges and got a favorable ruling from the Supreme Court the second time the issue was heard in 1998. Oscar Zamalloa, Supreme Court Clears Way for Fujimori to Seek Third Term, AGENCE FR. PRESSE, Feb. 10, 1998, LEXIS, News Library, Agence Fr. Presse File.
49. After Fujimori's "Victory," ECONOMIST, June 3, 2000, at 3;
50. The Question Marks Over Peru's Presidential Vote, ECONOMIST, May 20, 2000, at 45.
51. Japan Frets Over Peru's Presidential Vote, JIJI PRESS, May 29, 2000, LEXIS, News Library, Jiji Press Ticker Service File (quoting Japan's vice foreign minister);
52. see also Fujimori's Re-Election, MAINICHI SHIMBUN, June 1, 2000, at 2 ("[Regarding the primary election, we] raised questions about the fairness of the criticism that the United States, Europe, and nongovernmental organizations (NGOs) had leveled at Fujimori.").
53. Fujimori Moves into New Tokyo Apartment, YOMIURI SHIMBUN, Mar. 6, 2001, at 16.
54. Cleaning Up After Fujimori: Peruvian Panel Probes "Economic Crimes" Linked to Privatization, NACLA REP. ON THE AMERICAS, Jan. 1, 2002, at 42, 2002 WL 12669942 (detailing the Peruvian government's sixty-four investigations into Fujimori: Following his resignation, a number of public prosecutions, private lawsuits, congressional investigations, and general allegations have been brought against Fujimori in Peru.);
55. Abraham Lama, Peru: Wanted-A Judge Like Spain's Garzon for Fujimori, INTER PRESS SERV., May 25, 2001, LEXIS, News Library, Inter Press Serv. file (noting that as of May 2001, i.e., before his indictment by the Peruvian congress, Fujimori was subject to eleven lawsuits in Peru).
56. See, e.g., Fujimori Charged with Murder for 1991 Student Massacre, JAPAN ECON. NEWSWIRE, May 24, 2001, LEXIS, News Library, Japan Econ. Newswire File.
57. See, e.g., Peru's Congress Voles to Allow Charges Against Ex-President, N.Y. TIMES, Aug. 28, 2001, at A4.
58. Peruvian Judge Issues Warrant for Ex-President Fujimori, L.A. TIMES, Sept. 14, 2001, at A60.
59. See, e.g., Global Arrest Order Issued for Fujimori, CHI. TRIB., Jan. 25, 2002, at 6.
60. See, e.g., Japan Lodges Complaint with Peru Over Fujimori Investigation, AGENCE FR. PRESSE, Jan. 4, 2001, LEXIS, News Library, Agence Fr. Presse File.
61. Jonathan Annells, No Plans to Extradite Fujimori After Montesinos Arrest, AGENCE FR. PRESSE, Jun. 25, 2001, LEXIS, News Library, Agence Fr. Presse File;
62. Toledo Reiterates Request for Japan to Handover Fujimori, JAPAN ECON. NEWSWIRE, June 29, 2001, LEXIS, News Library, Japan Econ. Newswire File.
63. An Economist editorial is typical: In Peru's case, two countries carry a special responsibility. One is the United States .... The other is Japan. Its government recently announced that Mr. Fujimori was a Japanese citizen, since his parents were born there. Japan's desire to shelter Mr. Fujimori is understandable. His ethnic origin was once a source of pride. Moreover, Japan was especially grateful to him for the bold manner in which in 1997 he settled [the hostage crisis.]... Japan's decision may be correct, but it still looks odd: nowadays, the country's civil code forbids dual citizenship. Japan might lessen its embarrassment over the fact by indicating that, if Mr. Fujimori were to be charged with wrongdoing, his new status would not be a means for him to escape justice, in Peru or elsewhere. Investigating Fiijimori's Regime, ECONOMIST, Dec. 23, 2000, at 20;
64. see also Ilene R. Prusher, South American Misfits in Japan, CHRISTIAN SCI. MONITOR, Dec. 15, 2000, at 6 ("For the Japanese government, the Fujimori decision was a political as well as legal one.").
65. On the Lam in Japan, WASH. POST, Sept. 9, 2001, at B6.
66. See, e.g., James Brooke, Tokyo Journal; Fujimori the Exile, Repackages His Peruvian Past, N.Y. TIMES, Jan. 11, 2002, at A4 ("Although it usually takes years to obtain Japanese citizenship, Mr. Fujimori won his in December 2000, the month after he took refuge here." (emphasis added));
67. Gabriella Gamini, Peru Issues an Arrest Warrant for Fujimori, TIMES (London), Sept. 15, 2001, at 11 ("As the son of Japanese immigrants to Peru, he was granted Japanese citizenship on his arrival in November." (emphasis added));
68. Richard Lloyd Parry, Fujimori Turns Japanese to Evade Peruvian Justice, INDER (London), Dec. 13, 2000, at 14 ("In an extraordinary development which eliminates a diplomatic embarrassment for the Japanese government, Tokyo has decreed that the former president cannot be extradited....");
69. Jonathan Watts, Fugitive Fujimori Finds Sanctuary in Dual Nationality, GUARDIAN (London), Dec. 13, 2000, at 19.
70. Land of the Clouded Sun, CHRISTIAN SCI. MONITOR, July 20, 2001, at 10 (emphasis added).
71. One New York newspaper in a review of the Fujimori website editorialized: "As if cyber con men and computerized sex predators were not enough, now another menace lurks in the Internet's darkest electronic recesses: Alberto Fujimori." Albor Ruiz, Ex-Prez Has Web Fairy Tale, But It's No Happy-Ending, DAILY NEWS (New York), Aug. 23, 2001, at 4.
72. Eiichi Murano, "Shōjiki Yogoshita" Nilion Seifu [The Japanese Government That Is "Honestly Dirty"], ASAHI SHINBUN, July 31, 2001, at 10 (also noting that as of July 2001, forty-six of the senior officials, politicians, and judges Fujimori had appointed had been indicted for corruption).
73. Eiichi Murano, "Shōjiki Yogoshita" Nilion Seifu [The Japanese Government That Is "Honestly Dirty"], ASAHI SHINBUN, Id. (quoting government official as stating, "We applied the law without exercising any political decisions");
74. Tokyo Denies Protection for Fujimori, CHANNEL NEWSASIA, Dec. 14, 2000, LEXIS, News Library, Channel NewsAsia file ("Tokyo also adds that it did not strategically create a second nationality for Mr. Fujimori, but simply confirmed a fact that he does indeed have Japanese nationality.");
75. Gaimushō [Japan Ministry of Foreign Affairs], Gaimu daijin kaiken kiroku (heisei 12.12.12) [Record of Press Conference by Minister of Foreign Affairs on December 12, 2000], http://www.mofa.go.jp/announce/press/2000/12/1219.html (Dec. 19, 2000) (announcement by Minister of Foreign Affairs that Fujimori was a Japanese national and as such not subject to extradition);
76. Gaimushō [Japan Ministry of Foreign Affairs], Press Conference 14 September 2001, http://www.mofa.go.jp/announce/press/2001/9/914.html (Sept. 14, 2001) (statements of Ministry of Foreign Affairs Deputy Press Secretary regarding international arrest warrant for Fujimori and extradition).
77. Kokuseki hō [Nationality Act], Law No. 147 of 1950, (as amended by Law No. 268 of 1952, Law No. 45 of 1984, and Law No. 89 of 1993), translated in Japan Ministry of Justice, The Nationality Law, http://www.moj.go.jp/ENGLISH/CIAB/law01.html (last visited Apr. 20, 2002);
78. see also 5 HOUREI ZENSHO 68-69 [hereinafter Nationality Act]. For an excellent critique of dual nationality under the Nationality Act in English
79. see Mie Murazumi, Japan's Laws on Dual Nationality in the Context of a Globalized World, 9 PAC. RIM L. & POL'Y J. 415 (2000).
80. In Japanese, see, e.g., KOKUSAI KEKKON WO KANGAERU KAI, NIJO KOKUSEKI [Dual Nationality] 61-88 (1991) [hereinafter NIJŪ KOKUSEKI];
81. Shigeo Yanagihara, "Nijūkokuseki" yōnin ga kuni wo kaeru [Approval of "Dual Nationality" Can Change This Country], GENDAI, July 2001, at 7.
82. This article uses the term "dual national," which is intended to include the broader "multiple nationals" (jūkokusekisha) as well as the narrower "dual citizens." See, e.g., 8 U.S.C. §§ 1408, 1101(a)(29) (distinguishing between U.S. citizens and nationals, which is limited to those in American Samoa and Swains Island);
83. Pablo Lizarraga Chavez, Creating a United States-Mexico Double Helix: The Mexican Government's Proposed Dual Nationality Amendment, 33 STAN. J. INT'L L. 119, 124 (1997) (noting that citizens and dual nationals are distinguished under Mexico's constitutional amendment).
84. Japan Ministry of Justice, The Choice of Nationality, at http://www.moj.go.jp/ENGLISH/CIAB/ciab-04.html (outlining the Japanese government's policy towards dual nationals).
85. See, e.g., Citizenship Act of 1976, R.S.C., ch. C-29, § 9(1) (1985) (Can.);
86. U.S. Dep't of State, Advice About Possible Loss of U.S. Citizenship and Dual Nationality, reprinted in 67 INTERPRETER RELEASES 1092 (1990)
87. revised edition in 87 AM. J. INT'L L. 599 (1992);
88. European Convention on Nationality, Nov. 6, 1997, ch. 5, Europ. T.S. No. 166, available at http://conventions.coe.int/Treaty/en/Treaties/Html/166.htm;
89. Law Concerning the Legal Status and Entry and Exit of Brethren Abroad, Law No. 6015, Sept. 12, 1999, art 10 (S. Korea) (creating special class of foreign nationals who are lineal descendants of Korean citizens and giving this class residency and other nationality rights in Korea);
90. Paula Gutierrez, Comment, Mexico's Dual Nationality Amendments, 19 LOY. L.A. INT'L & COMP. L. REV. 999 (1997) (reviewing Mexico dual nationality constitutional amendments passed in March 1998);
91. see also Thomas M. Franck, Clan and Superclan: Loyalty, Identity, and Community in Law and Practice, 90 AM. J. INT'L L. 359, 378 (1996) ("The response of a system to a citizen's claim to 'dual-nationality' is an excellent indicator of that society's tolerance not merely for multiple loyalty but for the right of individuals to choose their affiliations.");
92. David A. Martin, New Rules on Dual Nationality for a Democratizing Globe: Between Rejection and Embrace, 14 GEO. IMMIGR. L.J. 1, 3 (1999) ("With the end of the Cold War, and a host of other developments that promote a more tightly linked, more peaceful, more democratic globe, it is indeed time to reconsider the classic aversion to dual nationality, and to eliminate some of the rules and practices that have constricted it.");
93. Murazumi, supra note 40, at 435-39 (summarizing practices of seventy nations that, as of 1999, allowed dual nationality even after naturalization in a second country);
94. Peter J. Spiro, Dual Nationality and the Meaning of Citizenship, 46 EMORY L.J. 1411, 1461 (1997) ("It is for these reasons-reflecting republicanism, communitarianism, and liberal notions of citizenship, respectively-at least in the United States and the rest of the democratic world, that dual nationality should not simply be tolerated but embraced.").
95. T. Alexander Aleinikoff & Douglas Klusmeyer, Plural Nationality: Facing the Future in a Migratory World, in CITIZENSHIP TODAY: GLOBAL PERSPECTIVES AND PRACTICES 63, 77 (T. Alexander Aleinikoff & Douglas Klusmeyer eds., 2001);
96. see also NIJŪ KOKUSEKI, supra note 40, at 140-41 (noting that, in a 1988 Japanese survey of the embassies of forty-two foreign countries, only Malaysia, Gabon, India, and Indonesia as a principle do not recognize dual nationality).
97. Research in International Law of the Harvard Law School, Draft Conventions and Comments on Nationality, Responsibilities of States for Injuries to Aliens, and Territorial Waters, 23 AM. J. INT'L L. 27-29 (Supp. 1929) (defining jus sanguinis as conferring nationality by "the descent of such person from one of its nationals" and its counterpart, jus soli, as conferring nationality by "birth of such person within its territory").
98. [Kyuu-]kokuseki ho [Nationality Law], Law No. 66 of 1899, art. 1, 1 HOUREI ZENSHO 241 (1899) [hereinafter Nationality Act of 1899];
99. see also J.E. DE BECKER, CIVIL CODE OF JAPAN I (1910).
100. Kokuseki ho oyobi koseki ho ichibu wo kaisei suru horitsu [Act Partially Amending the Nationality Act and Family Registration Act], Law No. 45 of 1984, 5 HOUREI ZENSHO 61 (1984);
101. Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.
102. Nationality Act, supra note 40, art. 2 (providing under present statute that nationality passes to children of Japanese parents).
103. NIJŪ KOKUSEKI, supra note 40, at 196-97, 219-20 (providing pursuant to Peruvian embassy's response to questionnaire on dual nationality under Peruvian law that Peru follows a jus soli policy).
104. See Kokuseiki ho kaisei horitsu [Act Amending Nationality Act], Law No. 19 of 1924, 1 HOUREI ZENSHO 19 (1924)
105. amending Nationality Act of 1899, supra note 46, art. 20-2;
106. Kokuseki ho dai 20-2(1) No kitei ni Atari gaikoku no shitei suru koto [Order Regarding the Matter of Designating the Foreign Countries Under Article 20-2(1) of the Nationality Act], Imperial Order No. 262 of 1924, 1 HOUREI ZENSHO 201-02.
107. Kokuseki ho dai 20-2(1) No kitei ni Atari gaikoku no shitei suru koto [Order Regarding the Matter of Designating the Foreign Countries Under Article 20-2(1) of the Nationality Act], Imperial Order No. 262 of 1924, 1 HOUREI ZENSHO 202, art. 20-2(1). This provision was broadened in the effort to add additional obstacles to dual nationality following the 1985 reforms and now applies to all dual nationals wherever born.
108. See Nationality Act, supra note 40, art. 12. However, for dual national children born abroad the period for registration of intent to retain Japanese nationality has been extended to within three months.
109. Koseki ho [Family Registration Law], Law No. 224 of 1947, art. 49, 12 HOUREI ZENSHO 176, 180;
110. see also Family Registration Law, 2 EHS L. BULL. SER. 2150 (1998).
111. Fujimori Confirmed to Have Citizenship, YOMIURI SHIMBUN, Dec. 12, 2000, at 1.
112. CONSTITUCIÓN [Constitution] 1993, art. 110 (Peru).
113. Calvin Sims, Documents in Peru Cast Doubt on Fujimori's Right to Rule, N.Y. TIMES, July 25, 1997, at A3.
114. It is specifically these kinds of ambiguities that have lead many civil law countries to prefer government registries over the privately retained documentation system used in common law countries. JOHN O. HALEY, AUTHORITY WITHOUT POWER: LAW AND THE JAPANESE PARADOX 115 (1991);
115. K. ZWEIGERT & H. KÖTZ, AN INTRODUCTION TO COMPARATIVE LAW 222 (Tony Weir trans., 3d ed. 1998).
116. Nationality Act, supra note 40, art. 13;
117. NIJŪ KOKUSEKI, supra note 40, at 196-97, 219-20 (providing in Peruvian embassy's response to questionnaire on dual nationality under Peruvian law that it is implicit under the law that a Peruvian national may renounce his or her nationality).
118. Kokuseki ho oyobi koseki ho ichibu wo kaisei suru horitsu [Act Partially Amending the Nationality Act and Family Registration Act], Law No. 45 of 1984, 5 HOUREI ZENSHO 61 (1984), art. 14 (referring to "abandonment" (hōki) of nationality rather than "renunciation" (ridatsu); it is not clear if there is any substantive difference between these two terms).
119. Fujimori Confirmed to Have Japanese Citizenship, supra note 52, at 1.
120. See, e.g., Afroyim v. Rusk, 387 U.S. 253, 254, 268 (1967) (holding voting in foreign election will not deprive U.S. citizen of nationality);
121. Kahane v. Shultz, 653 F. Supp. 1486 (E.D.N.Y. 1987) (holding sitting in parliament of second country alone will not deprive U.S. citizen of nationality);
122. Murazumi, supra note 40, at 435-39 (noting seventy countries in 1999 that allowed dual nationality by naturalization in a second country);
123. European Convention on Nationality, supra note 43, art. 21 (providing multinational should only be required to satisfy military duty in country of habitual residence).
124. See, e.g.. Nationality Act, supra note 40, art. 11(1).
125. But cf. Martin, supra note 43, at 6 ("Some national codes still require election of a single nationality... but the practice has been fitful.... Today [i.e., 1990s], with the reasons for concern about dual nationality in decline... it hardly seems likely that governments will find the will to impose rigorous enforcement of such a choice [of nationality] upon persons born dual nationals.").
126. See discussion infra notes 69-73 and accompanying text.
127. Nationality Act, supra note 40, art. 14(1). Persons who fail to elect may lose Japanese nationality.
128. Supra Note Id. art. 15(3). For the Ministry of Justice to revoke nationality it must give notice to the national, which may be done by publication if necessary.
129. Supra Note Id. art. 15(1)-(2). However, in response to recent inquires, the Ministry of Justice admits that it has never sent out notices requiring selection, thus, to do so now would raise claims of unfair treatment.
130. See Yanagihara, supra note 40, at 218. In other words, though the law requires election and the Ministry insists on it in its publications and informal advice, at present, there is no enforcement for failing to make the election. Therefore, even had this provision been applicable to Fujimori, it would not likely have altered the Ministry's determination that he still retained Japanese nationality. It is also worth noting that many countries would not find even the affirmative election strictly required under Japanese law to have any effect regarding retention of those countries' nationality.
131. See, e.g., U.S. Embassy Tokyo, Japan, American Citizen Services: Dual Nationality for Children Born to One American and One Japanese Parent, at http://usembassy.state.gov/posts/jal/wwwh7118.html (last updated Oct. 3, 2001).
132. Kokuseki hō oyobi koseki hō ichibu wo kaisei suru hōritsu [Act Partially Amending the Nationality Act and Family Registration Act], Law No. 45 of 1984, 5 HOUREI ZENSHO 61 (1984), fasoku Supplemental provisions, art. 3.
133. NIJŪ KOKUSEKI, supra note 40, at 196-97, 219-20 (providing implicitly in Peruvian embassy's response to questionnaire on dual nationality that under Peruvian law election of Japanese nationality does not effect Peruvian nationality).
134. Nationality Act, supra note 40, art. 16(1) ("A Japanese national who has made the declaration of choice shall endeavor to deprive himself or herself of the foreign nationality.").
135. International law problems relating to dual nationals who cannot renounce one of their nationalities have received extensive treatment from the international tribunal established to resolve claims following the Iran-U.S. conflict of the late 1970s and early 1980s. See, e.g., Decision in Case No. A/ 18 Concerning the Question of Jurisdiction Over Claims of Persons with Dual Nationality, 5 Iran-U.S. Cl. Trib. Rep. 251 (1984);
136. Nancy Amoury Combs, Toward a New Understanding of Abuse of Nationality in Claims Before the Iran-United States Claims Tribunal, 10 AM. REV. INT'L ARE. 27 (1999);
137. Peter E. Mahoney, The Standing of Dual Nationals Before the Iran-United States Claims Tribunal, 24 VA. J. INT'L L. 695 (1984);
138. Note, Claims of Dual Nationals in the Modern Era: The Iran-United States Claims Tribunal, 83 MICH. L. REV. 597 (1984).
139. Japan Ministry of Justice, supra note 42.
140. See, e.g., Fujimori Has No Plan to Abandon Peruvian Citizenship, JAPAN ECON. NEWSWIRE, Dec. 12, 2000, LEXIS, News Library, Japan Econ. Newswire File. It is notable though that despite polling places in eight different Japanese cities for the 12,000 registered Peruvian voters in Japan, Fujimori did not vote in the election for his successor.
141. Peru's Runoff Presidential Election Gets Underway, JAPAN ECON. NEWSWIRE, LEXIS, News Library, Japan Econ. Newswire File.
142. The Nationality Act provides: In the case where a Japanese national who has made the declaration of choice but still possesses a foreign nationality has voluntarily taken public office in the foreign country (excluding an office which a person not having the nationality of such country is able to take), the Minister of Justice may declare that he or she shall lose Japanese nationality if the Minister finds that taking such public office would substantially contradict his or her choice of Japanese nationality. Nationality Act, supra note 40, art. 16(2).
143. In Martin's argument for a new pro-dual nationality framework, he adds the proviso that dual nationals voluntarily assuming policy level positions in a national government should be required to relinquish their second nationality because, he argues, it is necessary at this level to avoid the appearance of a conflict of interest as well as any true conflict that might arise. Martin, supra note 43, at 31-32.
144. But see Spiro, supra note 43, at 1480-83 (arguing against restrictions preventing dual nationals from holding a foreign office, but acknowledging that a single-nationality requirement for certain high level domestic offices, such as those dealing with foreign policy, might be advisable). Franck's vision of dual nationality appears not to restrict dual nationals from holding policy level positions.
145. Franck, supra note 43, at 379-80.
146. One might argue that a dual national may only lose their Japanese nationality pursuant to Article 16(2) if the proceedings are begun while the dual national is in office. That is, Article 16(2) is not applicable in Fujimori's case because he no longer is a public officer of Peru. This reading, however, is not apparent from the language of Article 16(2), which does not qualify when the public office might be held other than after election of Japanese nationality. Further, this reading seems contrary to the apparent intent of the clause. This is because the clause's placement as a subclause to Article 16(1) and the phrase "the Minister finds that taking such public office would contradict his or her choice of Japanese nationality" both suggest that the critical issue of Article 16(2) is not the factual matter of the national's actual status, which would indeed be temporally sensitive. Rather, both factors suggest that the purpose of the clause is to create an evidentiary presumption that a person holding a restricted foreign public office by their own free will has not truly endeavored to abandon the second nationality and, thereby, has not sincerely elected Japanese nationality. Nationality Act, supra note 40, art. 16(2).
147. See, e.g., Yasuhiro Okuda, Shōgai koseki, kokuseki, kika nitsuite [Concerning the Public Relations of Naturalization, Nationality, and Family Registry], 341 NIHON GYOSEI 2, 10 (2001).
148. See, e.g., Corruption Suspect Is Naturalized, WASH. TIMES, July 19, 2001, at A15. Infinitely more disturbing than the Ministry of Justice's treatment of Fujimori is its handling of Aritomi. Aritomi was a de facto dual Peruvian-Japanese national under circumstances nearly identical to Fujimori's; however, his status became apparent to Japanese officials when he accepted the ambassadorial post in Tokyo. Thus, consistent with the endeavor to renounce requirement, the Ministries of Justice and Foreign Affairs forced him to select Peruvian nationality and renounce his Japanese citizenship. After Fujimori's fall-depending upon whose version you hear-Aritomi was either removed or resigned as ambassador, but he remained in Tokyo. In July 2001, Peru issued an international warrant through Interpol requesting Aritomi's arrest on charges of embezzlement and drug trafficking. Unlike Fujimori, as a Peruvian mono-national Aritomi could have been arrested and extradicted from Japan. Yet on July 19, 2001, the Japanese government granted Aritomi's application for naturalization, thereby shielding him from extradition as a Japanese national.
149. See, e.g., Calvin Sims, Fugitive Fujimori Relative Is Shielded by Japan, N.Y. TIMES, July 19, 2001, at A6. Unlike Fujimori's case where affirmative steps would have been needed to revoke his Japanese nationality, the Japanese government acted affirmatively to grant Aritomi nationality. Nationality Act, supra note 40, art. 4. Furthermore, the Ministry of Justice made the required determination that Aritomi was of "upstanding conduct" (sokō ga zenryō dearu), despite being well aware of the international warrants requesting his arrest on various grounds.
150. See Calvin Sims, Fugitive Fujimori Relative Is Shielded by Japan, N.Y. TIMES, id. art. 5(3). Moreover, Aritomi's application was processed in a mere six months, while others, such as those of second- and third-generation Koreans in Japan, often take substantially longer.
151. Hiroshi Matsubara, Foreigners Face Long Slog to Japanese Citizenship, JAPAN TIMES, Apr. 20, 2001, at 1, 3 (applications for resident Koreans take on average eleven months while other foreigners' applications are reviewed on average in twelve months; the government refuses to disclose data regarding the number of naturalization applicants and rejections; and "because of vague criteria and secretive procedures for reviewing applicants, the Justice Ministry is said to have too much discretion over whether to accept applicants, discouraging many foreigners from even applying for citizenship");
152. Hiroshi Matsubara, Koreans Weigh Merits of Gaining Japan Citizenship, JAPAN TIMES, Apr. 21, 2001, at 1, 3 (noting that one Korean resident was informed by the Ministry of Justice that his application would take five years to process because he had previous parking violations).
153. Given this background, the public protests by Peruvians against Japan and the official protests by the government of Peru in response to Japan granting Aritomi citizenship seem legitimate and, indeed, warranted. See, e.g., Calvin Sims, Peru: Unhappy with Japan, N.Y. TIMES, July 20, 2001, at A6 (noting official government protest by Peru that states Japan's granting of nationality to Aritomi was "an obstacle to the administration of justice in Peru");
154. Peruvian Group Calls for Boycott of Japanese Products, AGENCE FR. PRESSE, July 24, 2001, LEXIS, News Library, Agence Fr. Presse File (noting that 500 demonstrators threw eggs at the Japanese embassy in Lima in protest of Japan's granting of citizenship to Aritomi). In its defense, Japanese government officials said "politics was not involved in the [Aritomi] decision" and "those who have possessed Japanese nationality in the past tend to receive citizenship more easily than others."
155. Tokyo Grants Citizenship to Ex-Peruvian Envoy, JAPAN ECON. NEWSWIRE, July 18, 2001, LEXIS, News Library, Japan Econ. Newswire File.
156. Tōbō hanzainin hikiwatashi hō [Extradition of Criminal Fugitives Act], Law No. 68 of 1953, art. 2, 7 HOUREI ZENSHO 20-21.
157. 7 Hourei Zensho Id. art 2(1).
158. Yasutomi Kiyoshi, Political Offenses and Hijacking with the Japanese Law for the Extradition of Fugitives from Justice, 34 JAPAN. ANN. INT'L L. 69, 73-78 (1991).
159. Peru Attacks Japan for Aritomi Naturalization, JIJI PRESS, July 19, 2001, LEXIS, News Library, Jiji Press News Ticker File (quoting Peruvian Justice Minister Diego Garcia Sayan).
160. See generally Helen Duffy, National Constitutional Compatibility and the International Criminal Court, 11 DUKE J. COMP. & INT'L L. 5 (2001) (noting the trend and referring to the Nordic states and European Union changes); Michael Plachta, (Non-)
161. Extradition of Nationals: A Neverending Story?, 13 EMORY INT'L L. REV. 77 (1999);
162. Joshua H. Warmund, Note, Removing Drug Lords and Street Pushers: The Extradition of Nationals in Columbia and the Dominican Republic, 22 FORDHAM INT'L L.J. 2373 (1999) (noting abandonment of nonextradition policies by South American civil law countries in conjunction with drug enforcement).
163. Extradition of United States Citizens, 18 U.S.C. § 3196 (2001);
164. Extradition Act, 1989, ch. 33, § 1 (Eng.);
165. TADASHI MORISHITA, HANZAININ HIKIWATASHI HO NO RIRON [The Theory of the Law of Extradition of Criminals] 162 (1993);
166. I.A. SHEARER, EXTRADITION IN INTERNATIONAL LAW 121-22 (1971). Tangentially related: in October 2001 the United States in fact extradited one of Fujimori's and Montesinos' minions back to Peru to stand trial on corruption charges related to the second indictment against Fujimori-facilitating Montesinos' flight-though it does not appear the underling was a U.S. national and the extradition was pursuant to the U.S.-Peru extradition treaty.
167. See Terry Spenser, Extradition of Spy Chief Aide Ordered, AP WIRE, Oct. 3, 2001, 2001 WL 28748033.
168. See, e.g., Marlise Simons, Milosevic Is Given to U.N. for Trial in War-Crime Case, N.Y. TIMES, June 29, 2001, at A1.
169. See, e.g., COST. art. 26 (Italy) ("(1) The extradition of a citizen may be permitted only in such cases as are expressly provided for in international conventions. (2) In no instance shall it be permitted for political offences.").
170. Convention Relating to Extradition Between the Member States of the European Union, Sept. 27, 1996, art. 7(1), 1996 O.J. (C 313) 2. The convention allows for reservations to this rule, but they are limited to five years. Renuka E. Rao, Protecting Fugitives' Rights While Ensuring the Protection and Punishment of Criminals: An Examination of the New EU Extradition Treaty, 21 B.C. INT'L & COMP. L. REV. 229 (1998);
171. G. Vermeulen & T. Vander Beken, New Conventions on Extradition in the European Union: Analysis and Evaluation, 15 DICK. J. INT'L L. 265 (1997).
172. Gaimushō [Japan Ministry of Foreign Affairs], Press Conference 7 September 2001, http://wvw.mofa.go.Jp/announce/press/2001/9/907.html (Sept. 7, 2001) (statement by Ministry of Foreign Affairs Deputy Press Secretary that "the Government of Japan only has one such [extradition] treaty and that is with the United States").
173. Treaty on Extradition Between United States of America and Japan, May 26, 1980, U.S.-Japan, art. 5, 31 U.S.T. 892 (emphasis added).
174. 31 U.S.T. Id.
175. For a review of the nations currently inclined to deny extradition of nationals, see generally, Plachta, supra note 78.
176. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, art. 7, 1465 U.N.T.S. 113, 115 (entered into force June 26, 1987).
177. See generally CHRIS INGLESE, THE UN COMMITTEE AGAINST TORTURE (2001) (reviewing the treaty and obligations arising under it).
178. See, e.g., Japanese Ministry of Foreign Affairs, Press Conference 26 October 2001, http://www.mora.go.jp/announce/press/2001/10/1026.html (Oct. 26, 2001);
179. Japanese Say No Plans to Put Fujimori on Trial, EFE NEWS SERVICE, Oct. 23, 2001, LEXIS, News Library, Global News Wire File.
180. Regarding the Japanese government's consternation and the media's condemnation, see, e.g., Clay Chandler, Rape Case Fuels Ire in Japan: U.S. Rebuked for Failure to Hand Over Suspect, WASH. POST. July 5, 2001, at A9 (quoting Okinawa governor as stating, "We are very disappointed that we have not been able to have the suspect transferred to our jurisdiction" and that the four-day delay was "unforgivable");
181. Rape Case Undermines Trust, YOMIURI SHIMBUN, July 5, 2001, at 16 ("One of the factors amplifying the frustrations of people in the prefecture must be the issue of the U.S. military's handing over the suspect to Okinawa police.");
182. U.S. Stalling Over Rape Suspect Heats Up Okinawa, Mainichi SHIMBUN, July 4, 2001, at 1 (quoting a Japanese Ministry of Foreign Affairs official as stating "It appears as though the U.S. military does not want to hand over one of its own.");
183. Todd Zaun, Japan Insists U.S. Deliver Rape Suspect, WALL ST. J., July 6, 2001, at A6.
184. In addition to those noted below, other commentators have also suggested that Japan's reaction over the handing over of the suspect was perhaps greater than the objective facts merited. See, e.g., Lisa Takeuchi Cullen, Okinawa Nights, TIME (Asia ed.), Aug. 13, 2001, at 34 (noting the incident was not factually clear-cut and suggesting that the serviceman was only arrested because he was American, "given Japanese courts' bias against the plaintiffs in rape cases, it seems evident that if the defendant were a Japanese man, he may never have been indicted");
185. General James L. Jones, Okinawa: Marines Have Record of Good Conduct, L.A. TIMES, July 22, 2001, at 4 (noting that Americans account for 4% of the population in Okinawa and only 1 % of the crime).
186. See, e.g., Peru Unhappy with Japan Granting Citizenship to Aritomi, JAPAN ECON. NEWSWIRE, July 19, 2001, LEXIS, News Library, Japan Econ. Newswire File (noting Peru's ambassador to Japan "compared the situation [of Japan's refusal to extradite Fujimori] to the frustration Japanese felt over the time it took for a U.S. airman suspected of raping an Okinawa woman in June to be handed over to Japanese authorities"). Most cutting were the remarks of an American commentary writer: Japan acting contradictory [sic]. It is interesting to watch the traffic in human beings in Japan these days. You can conclude from it only that Japan has yet to decide whether, at some fundamental level, it has truly joined the advanced nations or wishes to remain among the primitive. An American airman is accused of rape in Okinawa, and the Japanese authorities demand that he be turned over. So justice should proceed. The government in Lima demands the extradition of Alberto Fujimori, Peru's dictatorial president until he fled to Japan last year, and Tokyo refuses. So is justice denied in the name of blood brotherhood? The core issue is openness. One can't distinguish among open markets, open borders, and open thinking.
187. Patrick Smith, Best of Bloomberg, CHI. SUN-TIMES, July 15, 2001, at 39.
188. The "handing over" of U.S. military personnel in Japan is actually covered by the Agreement Under Article VI of the Treaty of Mutual Cooperation and Security Between the United States of America and Japan, which provides: "The authorities of the State having the primary right [to jurisdiction] shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other State considers such a waiver to be of particular importance." Jan. 19, 1960, U.S.-Japan, art. XVII, § 3, 11 U.S.T. 1652 (emphasis added) [hereinafter SOFA]. It adds, "the custody of an accused member of the United States armed forces or the civilian component over whom Japan is to exercise jurisdiction shall, if he is in the hands of the United States, remain with the United States until he is charged by Japan."
189. 11 U.S.T. Id. § 5 (emphasis added). Thus, in the Okinawa case, because the serviceman had not yet been charged with the crime, the issue was either (1) why the United States delayed four days in its "sympathetic consideration" of his transfer or (2) why the Japanese police did not formally charge the suspect. Almost all of the press and public commentary focused on the former question. It eventually appeared that the United States hesitated in turning over the suspect before formal charges were brought because under Japanese law, during this pre-indictment period, the suspect is entitled to lesser rights and may be held for up to twenty-five days, subject to high-pressure interrogation, and limited access to representation.
190. Thom Shanker, U.S. and Japan Discuss Transfer of Rape Suspect, N.Y. TIMES, July 6, 2001, at A3. Moreover, under the SOFA, the United States is under an obligation to ensure that its accused serviceman has access to legal representation and translation. SOFA, supra, art. XVII(9)(e)-(f). Notably, this was only the second time the United States has turned over a suspect pre-indictment. The latter question regarding why Japanese police did not simply indict the suspect formally has not been addressed, but it might be speculated that it is precisely because the officials sought to use the flexibility of the pre-indictment period that they hesitated triggering the more substantive rights accompanying formal charges. Japanese pre-indictment criminal practice has been the subject of various domestic, foreign, and international criticisms in the past and with regards to this incident specifically.
191. See, e.g, Hum. Rts. Comm. Rep., U.N. GAOR, 54th Sess., Supp. No. 40, ¶¶ 164-68, U.N. Doc. A/54/40 (1999);
192. Concluding Observations of the Human Rights Committee: Japan, U.N. GAOR, Hum. Rts. Comm., 64th Sess., U.N. Doc. C.C.P.R/C/79/Add.102 (1998);
193. BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEP'T OF STATE, JAPAN: COUNTRY REPORTS ON HUMAN RIGHTS PRACTICE, http://www.state.gov/g/drl/rls/hrrpt/2000/eap (Feb. 23, 2001);
194. Seigo Fujiwara, Keiji tetsuzuki, nihon, kokusai suijun ni hikiageyo [Regarding Criminal Procedure Japan Must Rise Up to International Standards], ASAHI SHIMBUN, July 26, 2001, at 19 (a sharp editorial criticism of Japanese criminal procedure in light of the United States delay in Okinawa by the vice chairperson of the Japan Federated Bar Association).
195. KEIHO (Penal Code), art. 3, 2 ROPPŌ ZENSHO 3093 (2001).
196. See 2 Roppō Zensho id. art. 3, paras. 3, 6, 10-11, 13-15 & art. 4, para. 2, incorporating KEIHō, arts. 159-61, 199, 204-05, 220-21, 224-28, 235-36, 238-41, 243, 246-50, 253;
197. O.E.C.D. Convention on Combating Bribery of Foreign Public Officials, Nov. 17, 1997, 337 I.L.M. 8;
198. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171. But cf. HIROSHI ODA, JAPANESE LAW 125 (2d ed. 1999) ("Although the human rights covenant was ratified and promulgated [by Japan], it is regarded rather as a program and is rarely used as a basis for actions to protect human rights.").
199. The statutes of limitation for the crimes noted vary from fifteen years (e.g., for murder) to three years (e.g., for assisting a kidnapping). KEIJI KOSOHŌ, art. 250, 2 ROPPŌ ZENSHO 3145 (2001).
200. Regarding conspiracy liability in Japan, see KEIHO, arts. 60-62, 5 ROPPO ZENSHO 3098 (2001).
201. See, e.g., J. MARK RAMSEYER & MINORU NAKAZATO, JAPANESE LAW 178 (1999) (noting a 99.9% conviction rate for all criminal cases in district court in 1994).
202. See id. at 179-82 (arguing Japanese prosecutors' discretion regarding plea bargaining and what cases to try results in the high conviction rate).
203. Cf. JOHN O. HALEY, AUTHORITY WITHOUT POWER: LAW AND THE JAPANESE PARADOX 121-138 (1991) (taking a more social approach and suggesting that many contentious prosecutions are avoided as a matter of compromise balancing recognition of responsibility and victim compensation).
204. See RAMSEYER & NAKAZATO, supra note 95, at 179-82.
205. Pinochet's multimillion-dollar defense in England was funded by former friends with business interests in Chile. Jamie Wilson & Burhan Wazir, Pinochet Challenges Law Lord, Lawyers Allege Bias in Ruling, GUARDIAN (London), Dec. 5, 1998, at 1 (noting that multinational British American Tobacco was indirectly assisting in funding Pinochet's defense). If Fujimori's lifestyle and social companions in Tokyo are any indication, he would not have difficulty finding financial assistance to mount a defense either.
206. See, e.g., Fujimori Moves to Condominium, Leaving Novelist's Home, JAPAN ECON. NEWSWIRE, Mar. 4, 2001, LEXIS, News Library, Japan Econ. Newswire File (noting Fujimori lived at famous novelist Ayako Sono's house for his first six months of exile spending weekends at her villa on the seashore);
207. Calvin Sims, Fujimori Is Wined and Dined by Tokyo's Powerful, N.Y. TIMES, June 28, 2001, at A3 (noting Fujimori has become "the darling of [Japan's] wealthy, nationalistic political set" and noting one of his primary supporters in Japan, "a wealthy member of Parliament," was covering his expenses and intending to form a support group for him);
208. Jonathan Watts, Fujimori Clings to Haven in Japan: Peru's Ex-President Switches Nationality to Escape Extradition for Mass-Murder Charges at Home, OBSERVER (London), Sept. 16, 2001, at 8 (noting Tokyo mayor Shintaro Ishihara has lent Fujimori office space and helped to raise more than $200,000 for his support fund). Fujimori also has a significant support network at both the grassroots and highest levels from his time in power. For example, the "Fujimori and Peru Supporters' Association" was formed by former prime minister Morihiro Hosokawa on "nationwide calls to support Fujimori."
209. Joji Fukushima, Donations Aid Peruvian Children, JAPAN TIMES, July 28, 1991, at 24.
210. Fujimori Moves into Tokyo Apartment, MAINICHI SHIMBUN, Mar. 6, 2001, at 16 (noting that only after six months of living in Japan with Japanese friends was Fujimori "able to handle Japanese fairly effortlessly unless the conversation is abstract in nature"-as any trial would be).
211. Cr.C. (Jm.) 40/61, Attorney General of Israel v. Eichmann, 1961 45 P.M. 3, 36 I.L.R. 18, at 26;
212. Cr.A. 336/61, Attorney General of Israel v. Eichmann, 16 P.D. 2033, 36 I.L.R. 277.
213. Clifford Krauss, Former Spy Chief of Peru Is Flown to Lima to Face Charges, N.Y. TIMES, June 26, 2001, at A3.
214. Panjabi, supra note 10, at 63-64, 125-28.
215. Craig Mauro, Fujimori Mocks Peru as Charges Pile Up, GLOBE & MAIL (Toronto), Nov. 22, 2001, at A24;
216. Reynaldo Munoz, Peru Seeks Return of Ex-Ambassador from Japan, AGENCE FR. PRESSE, July 19, 2001, LEXIS, News Library, Agence Fr. Presse File.
217. Nottebohm Case (Liech. v. Guat.), 1955 I.C.J. 4, 23 (Apr. 6) (holding that a state needs a genuine link on which to base nationality in order to assert a right on behalf of that national under international law);
218. see also IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 410-24 (5th ed. 1998) (reviewing the Nottebohm Case).
219. Nottebohm, 1955 I.C.J. 4, 23 ("[I]nternational law leaves it to each State to lay down the rules governing the grant of its own nationality.");
220. BROWNLIE, supra note 104, at 319-20 (stating that nonextradition is not a violation of international law, but noting "to do so without assuming responsibility for trying the suspect is an obvious abuse of power").
221. See, e.g., Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 AM. J. INT'L L. 7 (2001) (reviewing international tribunals' treatment of individual liability). Because the International Criminal Court (ICC) has yet to commence it would not be an available forum for a Fujimori case. Rome Statute of the International Criminal Court, opened for signature July 17, 1998, arts. 11, 24, U.N. Doc. A/CONF. 183/ 9 (1998)
222. reprinted in 37 I.L.M. 999, available at http://www.un.org/law/icc/statute/romefra.htm [hereinafter Rome Statute] (ICC jurisdiction only covers crimes committed after the Statute enters into force);
223. 37 I.L.M. id. art. 126 (requiring sixty states to ratify before coming into force);
224. Coalition for an ICC, Country-by-Country Ratification Status Report, at http://www.igc.org/icc/html/country.html (as of March 7 2002, fifty-five states had ratified). Nevertheless, it is worth noting that if the ICC had been operating and Peru was a signatory, Peru likely could have referred the Fujimori case to the court for either surrender or prosecution of crimes against humanity, the same offense he is charged with in Peru. Rome Statute, supra, arts. 5(1)(b), 11 (providing ICC with jurisdiction over crimes against humanity);
225. Country-by-country Ratification Status Report, http://www.igc.org/icc/html/country.htmlid. arts. 12(2), 13(a), 14, 25 (listing parties over which ICC has jurisdiction); art. 87(5) (requests for cooperation of non-member states);
226. Country-by-country Ratification Status Report id. art. 89 (authority for surrender). In this light, the likelihood that Fujimori will not be held liable because of his serendipitously advantageous legal position in Japan adds weight to the arguments in favor of ratifying the ICC agreements.
227. Country-by-country Ratification Status Report Id. preamble & art. 17 ("Recalling [1] that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes" and [2] that the ICC will take jurisdiction where a "State is unwilling or unable genuinely to carry out the investigation or prosecution" of a suspect.).
228. Rome Statute, supra note 106, arts. 5-8.
229. Munoz, supra note 103, at *2.
230. Beth Van Schaack, In Defense of Civil Redress: The Domestic Enforcement of Human Rights Norms in the Context of the Proposed Hague Judgments Convention, 42 HARV. INT'L L.J. 141, 160 (2001).
231. Countries that might take "universal jurisdiction" over Fujimori's criminal human rights violations, similar to that in the Spanish Pinochet case, include, among others: Australia, Belgium, Canada, Denmark, France, Germany, Israel, Italy, Netherlands, Spain, Switzerland, and the United Kingdom. See, e.g., Michael P. Scharf & Thomas C. Fischer, Foreword to Symposium, Universal Jurisdiction: Myths, Realities, and Prospects, 35 NEW ENG L. REV. 227 (2001).
232. The United States generally does not exercise universal criminal jurisdiction, but like Karadzic, Fujimori might be sued civilly for human rights violations under the Men Tort Claims Act (ATCA) or Torture Victims Protection Act., 28 U.S.C. § 1350 (2001);
233. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995);
234. see also Filagarta v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
235. In the common law countries, this is considered part of the personal jurisdiction requirement. See, e.g., Baroda v. Wildenstein, [1972] 2 Q.B. 283 (Q.B. 1972) (requiring at least fleeting presence in a U.K. jurisdiction);
236. Kadic, 70 F.3d at 248 (criminal procedure code requiring personal presence in United States for suit under ATCA). In civil law countries this requirement is usually covered by statute.
237. See, e.g., C. PR. PEN. 689-1, 689-7 (Fr.) (requiring the perpetrator's presence in French territory for prosecution of international human rights violations). In Belgium, however, it would currently appear possible to take jurisdiction over Fujimori for human rights violations even if he did not leave Japan.
238. Stefaan Smis & Kim Van der Borght, Belgium: Introduction Note on the Act Concerning the Punishment of Grave Breaches of International Humanitarian Law, art. 7, 38 I.L.M. 918-20 (1999). But cf. In re Arrest Warrant of 11 April 2000
239. (Congo v. Belg.), 2002 I.C.J. (Feb. 14), at http://www.icjcij.org/icjwww/idocket/iCOBE/icobejudgment/ icobe_ijudgment__20020214.PDF (ICI case holding that the Belgian statute violates international law to the extent that the foreign defendant was still in power and located in Congo and outside of Belgium).
240. Michael Byers, The Law and Politics of the Pinochet Case, 10 DUKE J. COMP. & INT'L L. 415 (2000).
241. Regarding Japan's general stance on international human rights in English, see generally YUJI IWASAWA, INTERNATIONAL LAW, HUMAN RIGHTS, AND JAPANESE LAW: THE IMPACT OF INTERNATIONAL LAW ON JAPANESE LAW (1999); Kenneth L. Port, The Japanese International Law "Revolution": International Human Rights Law and Its Impact in Japan, 28 STAN. J. INT'L L. 139 (1991).
242. For whatever comparative perspective it is worth, I was resident in England during the United Kingdom's handling of the Pinochet case and in Japan during its treatment of the Fujimori issue.
243. Regarding the Spanish prosecution of Pinochet, see, e.g., Carrasco & Fernández, supra note 3;
244. Jaime Malamud Goti, The Moral Dilemmas About Trying Pinochet in Spain, 32 U. MIAMI INTER-AM. L. REV. 1 (2001);
245. Steven Hernandez & Sarah C. Aird, Profile of Dr. Juan E. Garces, Chief Lawyer in the Spanish Case Against General Augusta Pinochet, 7 HUM. RTS. BRIEF 2 (1999);
246. Shahram Seyedin-Noor, The Spanish Prisoner: Understanding the Prosecution of Senator Augusta Pinochet Ugarte, 6 U.C. DAVIS J. INT'L L. & POL'Y 41 (2000);
247. Antoni Pigrau Sole, The Pinochet Case in Spain, 6 ILSA J. INT'L & COMP. L. 653 (2000);
248. Richard J. Wilson, Prosecuting Pinochet in Spain, 6 HUM. RTS. BRIEF 3 (1999).
249. Ewen Macaskill, U.S. Urges Pinochet Return, Quiet Pressure by Washington Adds to the Dilemma for Straw, GUARDIAN (London), Nov. 20, 1998, at 1 (noting both lobbying efforts by the United States and Chile on behalf of Pinochet).
250. Reydams, supra note 3, at 700 (reviewing proceedings against Pinochet in Belgium);
251. Sengupta, supra note 5, at 7 (taking note of Switzerland, Belgium, and France's extradition requests to the United Kingdom).
252. In fact, some third party countries such as Malaysia have sought to distance themselves from the dispute between the two countries. Malaysia Rejects Peruvian Prosecutor's Accusations Over Fujimori, AGENCE FR. PRESSE, Aug. 23, 2001, LEXIS, News Library, Agence Fr. Presse File.
253. Ken Hijino & Paul Keller, Peru Hopes to Limit Damage to Japan Ties Over Fujimori, FIN. TIMES (London), Oct. 26, 2001, at 11 (quoting diplomatic sources saying, "Mr. Toledo recognizes that Peru has more to gain by encouraging good trade relations with Japan than by risking a diplomatic standoff in its bid to extradite Fujimori");
254. Latin America Briefs, AP WIRE, Oct. 16, 2001, WESTLAW, Westnews, Associated Press (AP) Newswires-Plus Database.
255. The NGOs' near silence on the matter is not easily explained or understood; though nearly a year following Fujimori's exile, Amnesty International Japan has made some minor efforts. See Widow of Murdered Lima Citizen Itching to See Fujimori Tried, JAPAN POL'Y. & POL., Oct. 29, 2001, WESTLAW, Westnews, Japan Policy and Politics Database;
256. Japan Must Not Shirk Obligation to Bring Fujimori to Justice, AGENCE FR. PRESSE, Oct. 26, 2001, LEXIS, News Library, Agence Fr. Presse File.
257. The official government policy was summarized by the Ministry of Foreign Affairs' Director of Latin American and Caribbean Affairs: Although the fact that the president is of Japanese descent is a secondary matter in Japan's [official foreign relations] policy toward Peru, it surely has a favorable impact on Japanese sentiments.... Since President Fujimori took office, a number of local governments, nongovernmental organizations and individuals in Japan have provided grassroots support for Peru.... We have to value and build on such feelings. Foundations Laid for a Bright Future, JAPAN TIMES, July 28, 1995, at 13 (interview with Kiyohiko Arafune).
258. See, e.g., Kiyoshi Kumagai, Spotlight Falls on Peru, JAPAN TIMES, July 28, 1990, at 6 ("As the result of [Japanese] journalistic fever generated by the fact that one of the two final candidates in the presidential election was Alberto Fujimori, almost all Japanese know about and are interested in Peru.");
259. Sims, supra note 98, at A3 (quoting one Japanese politician as stating "I am proud of former President Fujimori because he achieved something no other Japanese has ever done and may never do [again].").
260. Sims, supra note 98, at A3 (Ishihara is, of course, most famous in the United States as the author of The Japan That Can Say No).
261. See, e.g., Fujimori Lands Job as Takushoku Guest Professor, YOMIURl SHIMBUN, Jan. 5, 2002, at 2.
262. Jonathan Watts, Fujimori Lecture Fuels Talk of Return to Peruvian Politics, S. CHINA MORNING POST (Hong Kong), Jan. 11, 2002, at 12.
263. Fujimori Interested in Entering Japanese Politics, AGENCE FR. PRESSE, Nov. 18, 2001, LEXIS, News Library, Agence Fr. Presse File.
264. A Ministry of Foreign Affairs official reportedly stated that: Japan has long been active in providing economic assistance to Peru against the backdrop of friendly bilateral ties and the existence of some 80,000 Japanese-Peruvians and Japanese nationals in the country. But its aid increased dramatically since Alberto Fujimori, son of Japanese immigrants, became Peru's president in July 1990, because Japan strongly supports his efforts to revamp Peru's economic structure, pulverize terrorism and promote democracy. Takehiko Kajita, Japan Says Hostage Crisis Won't Change Peru Policy, JAPAN ECON. NEWSWIRE, Dec. 29, 1996, LEXIS, News Library, Japan Econ. Newswire File (noting also that grant aid to Peru increased from $39.79 million to $352.85 million in the first year of Fujimori's presidency and that following Japanese Prime Minister Hashimoto's visit to Peru in 1996, another $600 million in loans was pledged).
265. Investment in Peru Helped Make Japan a Terrorist Target, NIKKEI WKLY., Dec. 23, 1996, at 1 (noting a commitment to aid projects in Peru despite added safety risks and noting that Japan quickly replaced the United States as Peru's largest aid donor after Fujimori was elected, providing $858 million in the first four years of his term alone);
266. Victor Aritomi Shinto, Ties Strengthen in Variety of Fields, JAPAN TIMES, July 28, 1996, at 10 (noting exchanges in 1995 alone between as many as twenty-two Peruvian "senior government officials or high profile figures" and several Japanese "top-level advisors" from International Cooperation Agency, Export-Import Bank, and Overseas Economic Cooperation Fund, as well as delegations from prefectoral assemblies of Gunma, Hiroshima, Kumamoto, Osaka, and others, and ministerial visits from the Ministry of International Trade and Industry and Japan External Trade Organization, in addition to the visit of Prime Minister Hashimoto);
267. Victor Aritomi Shinto, Nation Achieves Important Advances, JAPAN TIMES, July 28, 1995, at 13 (noting that in 1994 alone, the Japanese and Peruvian ministers of agriculture, health, justice, education, transportation, and communications engaged in reciprocal visits).
268. See, e.g., Toshiki Kaifu, Government Is Promoting Cooperation, JAPAN TIMES, July 28, 1991, at 23 (Prime Minister Kaifu notes, "Since President Fujimori was sworn it, the Japanese people have taken an increasing interest in the country. Reflecting this, activities to extend support to Peru are now being carried out at national levels encompassing local public activities, charities, and individual citizens.");
269. Toshiki Kaifu, Exchanges Bolster Relations, JAPAN TIMES, July 28, 1990, at 6 (noting establishment of parliamentary exchanges between Japan and Peru);
270. Kumamoto Panel Asks Japanese Government to Support Fujimori, JAPAN ECON. NEWSWIRE, Dec. 14, 2000, LEXIS, News Library, Japan Econ. Newswire File (noting that the prefectural assembly panel adopted a resolution asking the Japanese government "to provide maximum support and security" for Fujimori, because he "contributed greatly to the development of Peru and improved the friendly relations between Japan and Peru");
271. Keizo Obuchi, Friendly Ties Enhanced, JAPAN TIMES, July 28, 1997, at 6 (Prime Minister Obuchi states, "In recent years, we have seen vigorous exchanges between the two countries not only at the governmental level but also at the parliamentary level, and I am glad that bilateral relations have been strengthened through such exchanges.").
272. Don't Cave into Terrorism, YOMIURI SHIMBUN, Apr. 24, 1997, at 6 ("Peruvian President Alberto Fujimori should be given full credit for his leadership in correctly judging that the time was right for quick and decisive action to end the siege.");
273. Government to Offer Peru More Yen Loans, YOMIURI SHIMBUN, Apr. 25, 1997, at 15 ("Japan will offer its largest-ever yen loans to Peru following the settlement of the hostage crisis.... To show its support for the government of Peruvian President Alberto Fujimori, Tokyo will quickly prepare the loans.");
274. Lesson of the Siege, MAINICHI SHIMBUN, Apr. 25, 1997, at 2 ("The Peruvian president's action in the latest crisis is in sharp contrast to the usual practice of our leaders, who sit snugly in the bureaucracy and are prone to postpone decisions and to avoid responsibility.");
275. Peru's Raid to Rescue Hostages Right Move Under Circumstances, NIKKEI WKLY., Apr. 28, 1997, at 6 (commenting, "The Peruvian government and President Alberto Fujimori deserve a standing ovation for courage and determination in ending the 127-day hostage crisis," and calling for closer relations and cooperation between Peru and Japan);
276. Poll: 80% of Japanese Back Raid on Lima Embassy, YOMIURI SHIMBUN, Apr. 26, 1997, at 1 (providing results from poll showing that 80% of Japanese people supported "Peruvian President Alberto Fujimori's decision," i.e., not Peru's decision).
277. Ryutaro Hashimoto, Fujimori to Continue Seeing Nation Through Hardships, JAPAN TIMES, July 28, 2000, at 6 (Prime Minister Hashimoto notes, "I have been a close friend [of Fujimori] since [1995]" and "[y]ou [Fujimori] have created Peruvian stability and prosperity in solving the aforementioned [economic] problems through your excellent leadership.");
278. Kiyoshi Kumagai, Concern Shown for Peruvian Friends, JAPAN TIMES, July 28, 1991, at 26 ("[Fujimori] has made every effort to enable Peru to recover its social stability and regain the trust of international financial circles. I would like to express my sincere respect for all the efforts made by the people under the leadership of President Fujimori throughout his first year.");
279. Peru's Raid to Rescue Hostages Right Move Under Circumstances, supra note 130, at 6 ("Since Fujimori came to power, the end of hyperinflation and increased investment have put the Peruvian economy on the road to recovery.... To support Peru's efforts, Japan should resume these projects as soon as possible.").
280. Luis J. Macchiavello, Democratic Process on Course, JAPAN TIMES, July 28, 2001, at 6 (noting that there was $70 million in direct private investment in Peru by Japanese industry in 2000 and $723 million in trade between Peru and Japan that year).
281. Central to this is the Japan-Peru Business Council formed in 1993, comprised of private businesses and charged with "promoting trade between the countries." Japan-Peru Businessmen's Meeting Starts, Jill PRESS, Sept. 6, 1994, LEXIS, News Library, Jiji Press Ticker Service File.
282. As noted in note 98, supra, Fujimori has been supported financially and socially by a number of Tokyo's prominent residents since his exile. See, e.g., Hideo Takayama, What Ever Happened to Alberto Fujimori, NEWSWEEK, Apr. 16, 2001, at 42 (noting a photo of Fujimoto smiling and dining with Tokyo Governor Ishihara and well-connected people);
283. Tokyo Gov. Ishihara Behind Fujimori's Japan Stay, Paper Says, JAPAN ECON. NEWSWIRE, Apr. 20, 2001, LEXIS, News Library, Japan Econ. Newswire File.
284. Byers notes: "[The Pinochet] case threatened to damage an economic relationship of considerable importance, with British companies having invested heavily in Chile, and with Chile being an important market for the British arms industry." Byers, supra note 112, at 421;
285. see also Wilson & Wazir, supra note 98, at 1 (noting big business' contribution to Pinochet's defense costs).
286. See Peruvian Group Calls for Boycott of Japanese Products, AGENCE FR. PRESSE, July 24, 2001, LEXIS, News Library, Agence Fr. Presse News File.