Cases: No. 16684 Compensation Claim 　
No. 27579 Compensation Claim
Panel of Judges: Koji Iwate, Presiding Judge
Asami Tejima
Eiichiro Shimada

Plaintiffs: Chen Xiuzhi and the other 179, Case No. 16684
Feng Xuena and the other 71, Case No. 27579
Defendent: Japan

Ruling: 1. Dismiss all claims by the plaintiffs;
2. Lawsuit expenses is within the responsibility of the plaintiffs.

Claims by the plaintiffs: 1. The defendant make official apology in document to each plaintiffs and publicize the apology in document in the defendant's government bulletin;
2. The defendant pay each plaintiff 10,000,000 yen as compensation, and 5% annual interest from August 11, 1997, the day the lawsuit is filed, to the day the compensation payment is completed.

Extract of the Text of the Ruling:
Chapter 5
6. Regarding claim for compensation for damages due to legislative negligence (issue point 6)
(1) Plaintiffs assert that the failure of the defendant's Diet or Cabinet to create laws for the relief of the plaintiffs, as victims of germ warfare, constitutes illegal negligence. And therefore the defendant have an obligation to pay solatia and to offer a formal apology in accordance with Article 1, Section 1 of the Law concerning State Liability for compensation.

(2) Let us first consider the legislative negligence of the Diet.
The actions of members of the Diet during the legislative process under the parliamentary democracy adopted by the Constitution of Japan depend upon the political judgement of each individual Diet member and it is appropriate to leave questions of propriety, in the end, to the political judgment of the citizenry through free speech and elections. So in principle the members of the Diet have a political obligation only to the people of the nation regarding the making of laws; they have no legal obligation regarding the rights of a particular citizen or other individual. Therefore, the legislative activities of Diet members (making a law or not making a law) does not violate the provisions in Article 1, Section 1 of the Law concerning State Liability for compensation except in cases that are difficult to fathom, such as if the Diet were to fail to create laws or create laws in a manner that contradicts the wording of the Constitution. (The first Petty Bench of the Supreme Court ruling, November 21st 1985, the Supreme Court Judicial Precedents: [Saikosaibansho Hanrei-shu], Volume 39, Issue 7, Page 1512) In light of this, the only cases in which the failure of the Diet to create a law may be deemed in violation of the Law concerning State Liability for compensation are exceptional cases whereby the Diet fails to create a law whose creation is mandated in the wording of the Constitution.

However, the plaintiffs assert that the only proper interpretation is that compensation claims to the government for legislative negligence may be recognized not only as stipulated by the ruling in the aforementioned 21 November 1985 Supreme Court case, but also in cases when circumstances are such that the severity of the human rights violations and the great need for relief to the victims are generally acknowledged and that despite sufficient recognition by the Diet and Cabinet of the need for appropriate legislation, no such laws are made even after the passage of a reasonable period of time. Yet, this assertion by the plaintiffs is unacceptable as it glosses over the special nature of the actions of Diet members during the legislative process.

(3) Therefore, in order to consider the legality of the Diet's failure to create the relevant law in this case based on the first paragraph of section (2) above, we must first look at whether the incidents of germ warfare claimed by the plaintiffs can be established as factual history, as these incidents form the premise upon which rests further inquiry into the legality of the Diet's actions or failure to act.

i. On this point, only the plaintiffs have endeavored to demonstrate their version of the facts; the defendants have made no effort to demonstrate (or counter-demonstrate) a different version of the facts, so we face limits and problems in establishing the facts of the case. This case involves complicated historical facts spanning several fields, and the establishment of factual details that can stand up to historical judgment must in the end wait for academic inquiry and debate based on unlimited documentation by historians, medical researchers, epidemiologists, cultural anthropologists and researchers in other related sciences. However, while recognizing such limits and problems, and having considered all the evidence in the case, this court believes it can establish the following facts: (Evidence submitted for each establishment of fact appears at the end of each section.)

(i.) The forerunner of Unit 731 was the Epidemic Prevention Department of the Kwantung Army, set up in 1936. It was reorganized as the Epidemic Prevention and Water Purification Department of the Kwantung Army in 1940, when it finally came to be known as Unit 731. This unit built an enormous headquarters facility in the city of Pingfan on the outskirts of Harbin in northeast China. At its peak, the unit even had branch offices in other locations. The principal tasks of the units were the research, development and manufacture of biological weapons, which took place at the Pingfan headquarters. Anti-Japanese resistance fighters in several regions of China were sent to Unit 731 and subjected to various types of experimentation during the process of the unit's research and development of biological weapons.
Similar units were located in other parts of China as well, the majorones being the Epidemic Prevention and Water Purification Department of Central China (Unit Ei-1644 and Unit 1644) located in Nanjing.
(Items A1, A2, A3, A18, A25, A27, A33, A54, A76, A77, A82, A85, A86, A88, A91, 1 and 2 of A99, and 1 of A105; and testimony of Yoshio Shinozuka, Masaichi Matsumoto, Xin Peilin, Yoshiaki Yoshimi, and Takao Matsumura)

(ii.) Between 1940 and 1942, Unit 731, Unit 1644 and other units conducted war using biological weapons (biological warfare) in various regions of China as is described in sections a, f, g and h below.
a Quxian (Quzhou)
(a) A Japanese military aircraft flew over Quxian on the morning of 4 October 1940 and sprayed wheat, soybeans, chestnuts, wheat bran, and strips of cloth mixed in with fleas infected with bubonic plague (some fleas were in sacs as well). That afternoon, the local governor mobilized the citizens of Quxian to collect and burn the material that had been dropped.
(b) Beginning 10 October, some people in the region where the aforementioned material was dropped became ill or died (however, whether the illnesses were bubonic plague has not been confirmed), and beginning around that time, a large number of rodent corpses were discovered. The first confirmed case of bubonic plague came on 12 November, and after this date several patients came down with bubonic plague in the area where the drop was made.
It is reasonable to assume that the plague cases breaking out on or after 12 November in Quxian were a result of the drop of plague- infected fleas by Japanese military aircraft; the disease moving from the fleas to rodents and then to human beings.
(c) Twenty-four deaths from plague were reported to the authorities by the end of 1940. However, the actual number of plague cases is believed to be higher as some families hid afflicted members and some patients fled out of fear of quarantine. Further, witness Qiu Mingxian asserts that germ warfare in Quzhou claimed as many as 1,501 victims.
Also, the plague in Quxian spread to surrounding areas as is explained in sections b through e, leading to a further large number of casualties.
(Items A2, A88, A91, A98, 1 of A105, and 1 and 2 of A283; and testimony of Masaichi Matsumoto, Yoshiaki Yoshimi, Qiu Mingxian, and Plaintiff Wu Shigen)

b Yiwu
(a) In September 1941, a railroad worker infected with the bubonic plague then prevalent in Quxian returned to Yiwu and fell ill, thereby bringing the plague to Yiwu.
(b) The plague was further transmitted from Yiwu to surrounding farming villages. Deaths from the plague in the Yiwu city area reached 309, according to an investigation by a group of local victims, including Plaintiff Chen Zhifa. (Items A77, A89, A98 and 1 of A105, and 1, 2 of A142; and testimony of Qiu Mingxian and Plaintiff Chen Zhifa)

c Dongyang
(a) In October 1941, the plague running through Yiwu spread to Dongyang province, becoming prevalent there as well.
(b) According to Plaintiff Guo Feilong, at least 40 people died of the plague in the Geshanzhen district of Dongyang where the plaintiff resided at the time.
(Items A77, 1 and 2 of A98, 1 and 2 of A353; and testimony of Qiu Mingxian)

d Chongshan Village
(a) Chongshan Village in Jiangwan District is divided into two sections - Upper Chongshan Village to the north and Lower Chongshan Village to the south - and has a high concentration of residential housing. However, there is little travel of residents between the upper and lower districts. The plague hit Upper Chongshan Village with an explosive force in October 1942, leading to several deaths. In early December, the plague appeared to have nearly spent itself in Upper Chongshan Village, but in December, residents of Lower Chongshan Village began to die from the plague.
This plague is believed to have spread from Yiwu.
(b) By the time the plague ended there in January 1943, the number of deaths caused by the disease in Chongshan Village reportedly reached 396, a third of its population at the time. (Items A58, A89, 1 of A105, 1 and 2 of A142, 1 and 2 of A286; and testimony of Makoto Ueda)
e Taxiazhou
(a) In October 1942, the plague which had hit Chongshan Village spread to Taxiazhou and became very widespread.
(b) In about two months, the number of deaths in Taxiazhou village reportedly reached 103, about a fifth of the population of the village at the time.
(1 and 2 of Items A143, A151; and testimony of Plaintiff Zhou Honggen)
f Ningbo
(a) In late October of 1940, Japanese military aircraft flew over Ningbo and dropped grains of wheat mixed with plague-infected fleas (later determined to be oriental rat fleas -- Xenopsylla cheopis) over the entire central Ningbo district of Kaimingjie.
(b) As early as 29 October, cases of plague broke out in the area where the drop was made. Aggressive treatment and anti-epidemiological measures were undertaken; the contaminated zone was quarantined and disinfected; and homes were burned. Thanks to these measures, the plague subsided in this area with the last patient in early December.
This instance of plague is believed, in the main, to have been transmitted directly to humans through bites from the dropped fleas.
(c) Confirmed deaths from this plague outbreak totaled 109, according to a study (See Item 1 and 2 of A97) by witness Huang Ketai, based on: information provided by physicians who helped treat the victims; on a report by the chief of the Republic of China government's central anti-epidemiology research institute; and on public reports given at the time.
(Items A3, A50, A91, A97, 1 of A105, 1 and 2 of A162, 1 and 2 of A288; and testimony of Masaichi Matsumoto, Yoshiaki Yoshimi, Huang Ketai, and Plaintiff He Qisui)

g Changde
(a) On 4 November 1941, Japanese military aircraft of Unit 731 flew over Changde and dropped cotton, grains and other goods along with plague-infected fleas right in the center of the town.
(b) The first patient came down with bubonic plague on 11 November, and in the roughly two months after the first outbreak, the primary outbreak killed eight people in the area of the town (according to an epidemiological report at the time). However, after a two-month lull, a second outbreak came in March 1942, and a total of 34 people in the town area perished (according to the aforementioned report).
The primary outbreak was likely caused by direction transmission, through bites by plague-infected fleas that had been dropped from the military aircraft. The secondary outbreak was believed to have been caused by indirect transmission; it likely started first in rodents which carried the plague throughout the winter then proceeded during the active spring period to infect humans via fleas infected by the rodents.
(c) Beginning in March 1942, the plague in the area of Changde proceeded to spread to farming villages, with many deaths reported in various areas. The number of deaths from the Changde plague reached 7,643, according to the Changde germ warfare victims investigation committee, although the scope of the investigation was extremely broad.
(Items A1, A2, A33, A75, A88, A91, A92, 1 of A93, 1 of A105, 1 and 2 of A144, 1 and 2 of A145; and testimony of Masaichi Matsumoto, Yoshiaki Yoshimi, Akiko Nakamura, Nie Lili, Plaintiff Yi Xiaoxin, and Plaintiff Ding Dewang)

h Jiangshan
(a) The Japanese military began its occupation of the town of Jiangshan on 10 June 1942 and withdrew about two months later. But during the withdraw, the army conducted germ warfare using strains of cholera. The method was mainly to put cholera directly into wells and on rice cakes and other food and to inject it into fruits.
(b) Among the people of Jiangshan, some contracted cholera through food or in the other such methods and died. According to a recent study by Plaintiff Zheng Kewei and Plaintiff Zhou Fayuan, a total of 37 people are believed to have died in what was then the Qidou Administrative Village.
(Items A91, 1 of A105, 1 and 2 of A163, 1 and 2 of A293; and testimony of Plaintiff Zhou Daoxin)

(iii.) The use of such biological weapons as a means to wage war was part of the overall war as prosecuted by the Japanese military and was thus in accordance with orders from central army command.
(Items A1, A2, A21, A33, A76, A91; and testimony of Yoshiaki Yoshimi and Takao Matsumura)

(iv.) (The details and severity of the cholera and plague suffered by the victims of this biological warfare)

a The bubonic plague is a contagious disease that tore through Europe in the 14th century and was feared as the "Black Death." In addition to bubonic plague, there are other types of plague, such as septicemic plague, pneumonic plague and dermatological plague. In general, light prodromal symptoms are followed by the sudden onset of chills and fever, then excruciating headaches, dizziness, nausea, vomiting accompanied soon by serious cardiac and/or vascular impairment. Dark spots may appear on the skin and the patient often goes into convulsions and dies in agony. Today, however, patients can be treated with sulfa and antibiotics. Bubonic, or glandular, plague (the most common human plague, accounting for 80%-90% of infections) and dermatological plague are transmitted by bites from infected fleas. Pneumonic plague is transmitted through the sputum or spray of a patient. Septicemic plague is, like pneumonic plague, often a secondary infection. With the close human contact of the afflicted region in this case, the plague used the social structure to kill many people quickly, leading to discrimination and mutual suspicion and thus to the destruction of the community and leaving a deep psychological scar on the people in the region. The plague is principally a rodent disease, so after it runs its course in a human population, the pathogen is conserved by the surrounding ecosystem. Thus, the danger of reinfection back into the human population remains for a long time. In this sense, the plague is a disease that not only destroys the local community; it also pollutes the environment for a long time.
(Items A89, A92, 1 of A93, 1 and 2 of A98; testimony of Makoto Ueda, Nie Lili, Akiko Nakamura, Qiu Mingxian; and the entire thrust of the argument)

b Cholera is a disease of the digestive system that is transmitted orally. The patient suffers dehydration due to vomiting and severe diarrhea as liquid as the water remaining after washing rice and also suffers muscular convulsions. Without treatment a large percentage of sufferers die. It is an extremely dangerous infectious disease. Today, however, appropriate rehydration combined with antibiotics have sharply reduced the mortality rate.
Because it is so contagious, fatalities come in rapid succession, often leading to discrimination and mutual suspicion in the community.
(1 and 2 of Items A163, A179, 1 and 2 of A293; testimony of Plaintiff Zhou Daoxin; and the entire thrust of the argument)

ii. Next, let us consider the damages asserted by the plaintiffs
The plaintiffs assert that they suffered from the former Japanese military's germ warfare as described in the document "List of plaintiffs and surviving relatives," affixed to the document "Plaintiffs' assertions," which is itself the number 3 affixed document (i.e. infection with plague or cholera or death as a result of one of these diseases). To demonstrate this, the plaintiffs submitted written statements, which are shown as Items A, as proof in concordance with the above assertion (1 and 2 of A142-145, of A161-163, of A283-293, and of A295-474). Some plaintiffs (Plaintiff Wu Shigen, Plaintiff He Qisui, Plaintiff Zhen Zhifa, Plaintiff Zhou Honggen, Plaintiff Ding Dewang, Plaintiff Yi Xiaoxin, Plaintiff Zhou Daoxin) gave statements to that effect during questioning. In the case of a majority of the plaintiffs, no evidence was submitted that was more objective than the above accounts in confirming the factual nature of the aforementioned plaintiff assertions. It may be that consideration is required regarding the possibility of submitting additional evidence in order to establish these facts with even greater certainty. However, the above-mentioned written plaintiff statements and the statements under questioning are sufficiently persuasive.

(4) Next, let us consider how to evaluate the facts of germ warfare as established above in terms of international law and how such actions are dealt with in terms of relations between China and this country.

i. On this point, the plaintiffs assert that Article 23, Section 1 of the Hague Convention for War On Land (prohibition on employing "poison or poisoned weapons") and the provision in the same Section 1 regarding the use of weapons, projectiles or other materials that cause unnecessary suffering apply to this case of germ warfare, and that the germ warfare in this case violates Article 25 (prohibiting attack or bombardment of any kind on the residences or buildings of undefended cities and villages) and also the prohibition of the use of poisonous gas in the Geneva Protocol on Poisonous Gas, signed in June 1925.
ii. First let us consider Article 23, Section 1 of the Hague Convention for War on Land and the Geneva Protocol on Poisonous Gas

It is not immediately clear from the wording of Article 23, Section 1 of the Hague Convention for War on Land - the prohibition "to employ poison or poisoned weapons" - that it covers germ warfare. However, during the Brussels Conference of 1874, a participant made a proposal to add to Article 23, Section 1 of the Hague Convention for War on Land a prohibition on the use of substances that could help spread infectious diseases in occupied territory. The chairman of the conference, however, reportedly asserted that certainly the commander of an occupying army would not fail to take every precaution to prevent infectious diseases among the forces under his command. Satisfied with that interpretation of the article and section, the participant who made the proposal subsequently withdrew it. The objective of war or battle is to weaken the enemy's military strength (Declaration of St. Petersburg, 1868); "the right of belligerents to adopt means of injuring the enemy is not unlimited" (Article 22, Hague Convention for War on Land); and the use of weapons that cause excessive harm or unnecessary suffering is prohibited (Article 23, Section 1 of Hague Convention). Based on these restrictions for harming the enemy and the historical background described above, there can be no argument with the statement that even at the time of the aforementioned Brussels Conference germ warfare against countries involved in the fighting was to be prohibited. It seems reasonable to believe there was at the very least a common unstated understanding among participants. In this light, it appears that Article 23, Section 1 - prohibiting the employment of "poison or poisoned weapons" - applies to biological weapons.

However, it is not precisely clear how the international community handled biological weapons, and the drafters of the 1925 Geneva Protocol on Poisonous Gas (official name: Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Biological Methods of Warfare, signed by 125 nations) cited by the plaintiffs said they would "extend" the poisonous gas prohibition to include use of biological means of warfare. This phrasing, after all, gives one pause before concluding that Article 23, Section 1 of the Hague Convention - prohibiting the use of "poison or poisoned weapons" - also applies to biological weapons.

Nevertheless, it is clear that the Geneva Protocol on Poisonous Gas prohibits the use of biological weapons. What had been at least an unstated common understanding that biological weapons are relatively inappropriate for the purposes of war had formed the basis for the clear prohibition on their use in the Geneva Protocol on Poisonous Gas (signed, as mentioned above, by 125 nations). So it is appropriate to recognize that since the protocol went into effect in 1928, then by that time at the very latest the legal certainty regarding the protocol had been established among most nations of the world and that therefore that international customary law had been established based on the articles of the protocol. It is then clear that the former Japanese military's use of biological weapons in combat in various regions of China violated the Geneva Protocol on Poisonous Gas's prohibition on "biological methods of warfare."

iii. In recognizing also that the Hague Convention for War on Land had been established at the latest by 1911 as an international customary law, and in considering the fact that Article 23, Section 1 of the convention states that, "besides the prohibitions provided by special Conventions, [the following] is especially prohibited:" and that the preamble to the Hague Convention for War on Land states that, "the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience," it is reasonable to conclude that prohibitions on means of injuring the enemy according to treaties such as the Geneva Protocol on Poisonous Gas or to international customary law established through such treaties fall under "the prohibitions provided by special Conventions" as is written in Article 23, Section 1 of the Hague Convention. Therefore, even in the event of a violation of the prohibition on biological weapons according to international customary law established by the Geneva Protocol on Poisonous Gas, the government can be held responsible for international customary law as established by the rules of Article 3 of the Hague Convention for War on Land.

The former Japanese military's use of biological weapons during combat in various areas of China violated the Geneva Protocol on Poisonous Gas's prohibition on "biological methods of warfare" as is explained in section ii above. So it is appropriate to conclude that the defendant has sovereign responsibility for this case of germ warfare according to international customary law as established in Article 3 of the Hague Convention for War on Land.

The plaintiffs assert that the germ warfare in this case violates both Article 23, Section 1 of the Hague Convention for War on Land as well as Article 25, but as is explained above, the government's responsibility for this case of germ warfare arises from international customary law as established by Article 3 of the Hague Convention for War on Land, as a violation of international customary law as established by the Geneva Protocol on Poisonous Gas, so there is no need to consider further violation of land war laws. Thus, we proceed to the next argument.

iv. As explained earlier, according to the basic principles for international law, the national responsibility of the defendant for this case of germ warfare is something that should be resolved in bilateral relations between China and this country. However, as is well known, the government of the People's Republic of China stated in a joint communique with Japan on 29 September 1972 that in the interests of friendship between China and Japan, China would waive any claims to war reparations from Japan and that in the China-Japan Treaty of Peace and Friendship signed on 12 August 1978 (instruments of ratification were exchanged on 23 October) was confirmation that every principle in the joint communique would be strictly observed.
Therefore, it must be concluded that the defendant has already disposed of its national responsibility according to international law.

(5) Let us now determine, based on the above facts and explanations, whether the defendant committed illegal legislative negligence.

i. The plaintiffs assert that since the defendant's prosecution of germ warfare was an abominable violation of law, reason dictates that the defendant is obliged to give consideration and assurance so as not to increase the suffering of its victims.
However, the current legal structure does not recognize the existence of the kind of reason about which the plaintiffs speak, as is explained in section 5 above. Of course, compensation would be for the violation of law, but the Diet may exercise broad discretion to make political or diplomatic judgments based on a wide range of factors that include the details and severity of such a violation of law; further, it is expected to do so. The Diet cannot be made to bear the legal obligation, as the plaintiffs assert, based on the circumstances put forth by the plaintiffs. Even considering the nature of the injury inflicted by this case of germ warfare and a legal evaluation of this case of germ warfare, the same conclusion is reached inasmuch as the issue has been resolved bilaterally with China according to international law.

ii. Next, let us turn to the relevant passages in the Constitution as cited by the plaintiffs.

(i.) The preamble to the Constitution
In the preamble to the Japanese Constitution, there is no judicial precedent and no legislative obligation regarding specific future items.
(ii.) Regarding Articles 9, 13 and 14 of the Constitution
The above articles stipulate pacifism and the renunciation of war (Article 9); respect for the individual and the individual's right to life, liberty and pursuit of happiness (Article 13); and equality under the law (Article 14). Nowhere in these articles does the Constitution stipulate the government must provide compensation for damages or an obligation to create legislation for compensation.
(iii.) Regarding Article 17 of the Constitution
This article states, "Every person may sue for redress as provided by law from the State or a public entity, in case he has suffered damage through illegal act of any public official." It leaves the nature of the government's compensation responsibility to the law, the specifics of which the Constitution says nothing. Further, it says nothing about the specific legislative obligation for illegal acts committed by public officials before the promulgation of the Constitution.
(iv.) Regarding Article 29, Paragraphs 1 and 3
These paragraphs stipulate the protection of property rights and compensation in the event of a special loss of property, but the damages asserted by the plaintiffs in this case cannot be said to be a special case of property loss. Further, the above paragraphs do not stipulate government compensation to war victims; nor do they stipulate an obligation to create laws for compensation.

iii. The plaintiffs assert, as is described in the above 5 (3) section ii, that the domestic and international trend regarding post-war compensation legislation in Japan and other countries has established as international customary law the principal of compensation for damages to victims of illegal war actions, and therefore the Diet is obligated to create laws stipulating compensation to the victims in this case in accordance with the duty of public officials to observe international customary law as stipulated in Article 98, Paragraph 2.

However, as is explained in 1 (8), 2 and 5 above, it is untrue that international customary law has been established as the plaintiffs claim. Thus, the obligation of the Diet to create laws to provide compensation in this case is not stipulated.

iv. Further more, the plaintiffs assert that between 1993-- when so-called Imoto Journal was discovered and developed the fact of the germ warfare -- until no later than August 1999, 2 years after the Judgement of the third Petty Bench of the Supreme Court held on August 29th 1997 ( the Supreme Court Judicial Precedents: [Saikosaibansho Hanrei-shu] Volume 51, Issue 7, Page 2921), forbearance from making a relief measure Law for the victims of the germ warfare has become illegal.

However, the above plaintiffs' assertion is based on their own standards of judgment, and so the failure to create the relevant laws cannot be deemed illegal. Even according to the judgment of this court, circumstances did not dictate an obligation on the part of the Diet to create laws for the compensation of the victims of this germ warfare.

v. Conclusion
Although as explained above, the suffering caused by this case of germ warfare was truly immense and the former Japanese military's wartime actions were clearly inhumane, considering the case according to a legal framework, it is clear that the defendant's Diet has not committed an illegal act of legislative negligence as stipulated in Article 1, Section 1 of the Law concerning State Liability for compensation.

If this nation were to consider some sort of compensation for the damages in this case of germ warfare, it is conceivable that it would be handled through domestic law or domestic measures. In such a case, the decision whether to take certain measures or if measures are taken what measures to take should be made in the Diet with a high level of discretion.

(6) Therefore, the failure of the Diet to create laws for the relief of victims of this germ warfare cannot be conceived as illegal, and thus the plaintiffs' claims based on such an assertion are groundless.

(7) Next, the plaintiffs assert that the Cabinet was illegally negligent in its duty to submit a bill to provide relief to the victims.

However, while the Cabinet has the right to submit bills of law (Cabinet Law, Article 5), the Cabinet is an executive organ (Constitution, Article 73, Sections 1, 4 and 5) not an organ established to assist legislation. Therefore, primary legislative responsibility should lie with the Diet. Thus, if the Diet's failure to create a law cannot be conceived as illegal according to the Law concerning State Liability for compensation, Article 1, Section 1, then it is reasonable to assume that the Cabinet's failure to submit a bill cannot be considered illegal under the same article and section.

The plaintiffs' assertions regarding the responsibility of the Cabinet are roughly the same as their assertions regarding the legislative negligence of the Diet. As the failure of Diet members to create laws for this case is not illegal, it is all the more inconceivable that the Cabinet's failure to submit a bill is illegal. Thus, the plaintiffs' claims based on the legislative negligence of the Cabinet are groundless.