Bengoshi (Japan); Visiting Scholar, University of Washington
November 30, 1999
The author worked at the UN human rights bodies as a NGO representative advocating the victims of military sexual slavery by Japan for about 6 years starting from February 1992 and wishes to discuss about the recent developments in the UN and the ILO as well as our future tasks. His monthly reports entitled "Nihon ga shiranai nihon no sensou sekinin", or "War Crimes Japan ignores" are available in the home page of the Japanese version. The followings are the summery of them. (This is the updated version of a paper "Military Sexual Slavery and "Comfort Women" Issues - Achievements in the UN and further Challenges -- given to the 3rd biennial Conference organized by Global Alliance for Preserving the History of WWII in Asia on October 16-18, 1998 in Toronto.)
The concerned UN NGOs, including International Fellowship of Reconciliation (IFOR) represented by this author, welcomed the Report submitted by Ms Radhika Coomaraswamy, the Special Rapporteur on violence against women to the 1996 UN Commission on Human rights on the issue of military sexual slavery (E/CN.4/1996/53/Add.1. http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/b6ad5f3990967f3e802566 d600575fcb?Opendocument). Ms Coomaraswamy found that the conducts against the Asian women victims by the Japanese Imperial Forces should be identified as military sexual slavery and they violated customary international law and that Japan is legally responsible for not only compensation to the victims but also for punishment of perpetrators. I already reported about our UN campaign towards this stage to the 1996 GA Conference.
The Japanese government challenged her report and raised a number of legal arguments, which includes (1) that acts of rape was not prohibited by either the Regulations annexed to the Hague Convention No. IV of 1907 or by applicable customary norms of international law in force at the time of the Second World War; (2) that, with regards to claims for legal compensation, individual ”comfort women" have no right to such compensation; and (3) that, alternatively, any individual claims that these women may have had for compensation were fully satisfied by peace treaties and international agreements between Japan and other Asian States following the end of the Second World War.
The Final Report on systematic rape, sexual slavery and slavery-like practices during armed conflict(E/CN.4/Sub.2/1998/13, http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/3d25270b5fa3ea99802566 5f0032f220?Opendocument) was submitted to the UN by Ms Gay McDougall, an American alternate member of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (released on 12 August 1998). In it, Ms McDougall examined not only the above mentioned points but also all other major legal arguments raised by Japan and found that all of them were wrong under then international law (Id. Appendix). Her conclusion was essentially the same as that of Ms Coomaraswamy and she found that Japan committed serious crimes against many women, mainly from Asia in violation of then international law and has the legal duties to punish those responsible and to pay compensation to the victims. Her recommendations included: (1) The need for mechanisms to ensure criminal prosecutions; (2) The need for mechanisms to provide legal compensation; (3) Adequacy of compensation; and (4) Reporting requirements.
She concluded her report as follows:
"68. The present report concludes that the Japanese Government remains liable for grave violations of human rights and humanitarian law, violations that amount in their totality to crimes against humanity. The Japanese Government's arguments to the contrary, including arguments that seek to attack the underlying humanitarian law prohibition of enslavement and rape, remain as unpersuasive today as they were when they were first raised before the Nuremberg war crimes tribunal more than 50 years ago. In addition, the Japanese Government's argument that Japan has already settled all claims from the Second World War through peace treaties and reparations agreements following the war remains equally unpersuasive. This is due, in large part, to the failure until very recently of the Japanese Government to admit the extent of the Japanese military's direct involvement in the establishment and maintenance of these rape centers. The Japanese Government's silence on this point during the period in which peace and reparations agreements between Japan and other Asian Governments were being negotiated following the end of the war must, as a matter of law and justice, preclude Japan from relying today on these peace treaties to extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the cessation of hostilities is a testament to the degree to which the lives of women continue to be undervalued. Sadly, this failure to address crimes of a sexual nature committed on a massive scale during the Second World War has added to the level of impunity with which similar crimes are committed today. The Government of Japan has taken some steps to apologize and atone for the rape and enslavement of over 200,000 women and girls who were brutalized in "comfort stations" during the Second World War. However, anything less than full and unqualified acceptance by the Government of Japan of legal liability and the consequences that flow from such liability is wholly inadequate. It must now fall to the Government of Japan to take the necessary final steps to provide adequate redress."
Being against her report, the Japanese government explained what they did through the Asian Women's Fund, namely a private fund and said "[T]he Government of Japan can not agree with the legal interpretations expressed in the appendix to this report nor can we accept its conclusion and recommendations which request the Japanese Government to take steps to provide redress rather than that which we are already undertaking." Not only NGOs but also many governments however, overwhelmingly welcomed her report. And the Sub-Commission welcomed her report as a whole including the Appendix in its resolution 1998/18
The Yomiuri Shinbun, the biggest Japanese newspaper attacked Ms McDougall in its editorial of August 11. The Yomiuri accused that she made mistakes in fact-finding and that she reported the Japan's case with no mandate for the past case. Those accusations are groundless, however. First, it is clear for anyone who read her report that Ms Mcdougall relied on the very facts admitted by the Japanese government herself, not on her invention. Second, the Yomiuri, itself clearly knew that the Special Rapporteur had the mandate on military sexual slavery by Japan. The Yomiuri of August 26, 1993 published an article with the headlines, which read "The UN decides to investigate the 'comfort women' issue", when her predecessor's mandate was originally given by a Sub-Commission's resolution. The Yomiuri should, I believe, apologize to Ms McDougall and the UN for its defamatory editorial.
Following its 1996 report, which condemned sexual slavery by the Japanese Imperial Forces as violation of the ILO 29 Forced Labour Convention (1930), the Committee of Experts, the 20 member quasi-judicial expert body of the International Labour Organization made the second observation on the issue of military sexual slavery by Japan in 1997 (International Labour Conference 85th Session 1997, Report of the Committee of Experts on the Application of Conventions and Recommendations, ILO. pp. 82-84.
http://ilolex.ilo.ch:1567/public/50normes/ilolex/pdconv.pl?host=status01&tex tbase=iloeng&document=3498&chapter=6&query=%28Japan%29+%40ref+%2B+%23YEAR%3C 1999&highlight=&querytype=bool). In it, the Committee turned down the Japan's argument that the Convention should not be applied in the event of war. The Committee ruled as follows:
"The Committee had noted that the abuses referred to fell within the absolute prohibitions contained in the Convention. The Committee further considered that such unacceptable abuses should give rise to appropriate compensation, since the Convention had provided, even for forms of compulsory service that could be tolerated under Article 1(2) during a transitional period after its coming into force, that the persons called up for such services were to be paid compensation and entitled to disability pensions under Article 14 and 15. ..... The Committee concluded that the present case does not fall within the exemptions contained in Article 2(2)(d) and 2(2)(a) of the Convention, and clearly therefore there was violation of the Convention by Japan. The Committee recalls that, under Article 25 of the Convention, the illegal exaction of forced or compulsory labour shall be punishable as a penal offense, and it shall be an obligation on any Member ratifying the Convention to ensure that the penalties imposed by law are really adequate and strictly enforced. The Committee notes that, under sections 176 and 177 of the Penal Code of Japan (Act No. 45 of 24 April 1907) indecency through compulsion and rape are punishable offenses."
Being encouraged by this observation, many labor unions in the Republic of Korea and Japan with close cooperation from many civil and women groups submitted more information including voices against the Asian Women's Fund and further legal opinions to the Committee. As expected, the Committee published the third observation (http://ilolex.ilo.ch:1567/public/50normes/ilolex/pdconv.pl?host=status01&te xtbase=iloeng&document=4419&chapter=6&query=%28Japan%29+%40ref+%2B+%23YEAR%3 D1999&highlight=&querytype=bool) in March 1999. In it, the Committee found the violations of the Convention 29 concerning not only the issue of "comfort women" but also the issue of forced labor by the Japanese industries during WWII.
First, the ILO Committee of Experts may pursue any issue as far as they feel necessary. If the concerned labor unions cooperating with civil and women groups submit further relevant information to the Committee, the supervisory procedure will give more pressure on the Japanese government. Accumulation of observations of the Committee of Experts will result in the debate by the Conference Committee on Standards of the ILO General Assembly, which is politically strong and well established supervisory body.
Second, following up and implementing of the McDougall report as well as the Coomaraswamy report is important in the UN system. The UN Working Group on Contemporary Forms of Slavery is the forum, where this issue has been discussed. The WG may be advised to encourage Japan to consider the recommendations made by Ms McDougall.
In order to discuss about this possibility, I must report about a serious set back at the WGCFS and the Sub-Commission in 1998. From 1992 to 1997, the Sub-Commission made certain actions on the issue of military sexual slavery by Japan every year, as the WG recommended it to do so. In 1998, the Sub-Commission stopped doing so, as the WG recommended nothing. Why? There seemed to be at least two reasons. First, the Japanese government and the AWF succeeded in their extensive lobbying, which included the invitation of Ms Halima Warzazi, chair-person of the WG to Japan at the beginning of 1998 and pushing Mr Yozo Yokota, a member of the Council of the AWF, an alternate member of the Sub-Commission into the WG. Then, one fifth of the WG was occupied by an AWF representative. Although Mr. Yokota was replaced by Mr. Park from South Korea in 1999, the authoritarian control by Ms Warzazi did not change. The chairperson blocked the most of the attempts by the NGOs for interventions on this issue of "comfort women" with no convincing reasons in 1999. Second, domestic civil and women groups in the ROK, the Philippines and Japan except for few ignored the WG and did not participate in the 1998 and 1999 sessions of this most important UN forum for this issue.
The concerned civil and women groups must have made some misunderstandings concerning the activities of the UN. (1) They misunderstood that the UN was a superman-like body and they would take care of this issue automatically with no intervention from NGOs. But they are basically governmental body and do not work, unless many NGOs earnestly advise them. (2) They misunderstood that a few experts such as myself could take care of the UN. Although we achieved some UN resolutions, reports and recommendations, the movements for their implementation should follow. It requires much bigger pressure than ever. I attended every WG session in the past six years but changed my life style and stopped going to Geneva in 1998, as I warned to the relevant civil and women groups in advance. Earlier, I asked them to receive my torch of the UN campaign, but it didn't work well. (3) They misunderstood that the WG is not as important as bigger conferences such as the Sub-Commission. Contrary to this misunderstanding, a WG session of the Sub-Commission, which was held prior to a full meeting of the Sub-Commission, was the forum where we started debates on this issue. And the Sub-Commission usually endorsed their recommendations. As a result, going only to the Sub-Commission was just too late. This WG is very precious, as it succeeded the mandate on slavery from the League of Nations. (4) They misunderstood that domestic organizations cannot send their representatives to the WG, unless they get credentials from NGOs with consultative status with the UN. Any relevant organizations may send their representatives to the WG, if they apply for the invitation in accordance with a Commission resolution (1991/58). The WG works for 8 working days in May or June. They may speak several times, submit documents, and even propose any draft recommendations under informal atmosphere.
There are, however, many positive signs in the movements, which are developing. Because of publicity through mass media, McDougall report has been drawing much attention of not only civil and women groups but alsopoliticians in the concerned countries. President Kim, Dea-Jung of the ROK cited it in an interview with chief editor of a Japanese journal (Sekai, October 1998. p. 61). Citing it, House resolution No. 378 was submitted to the Philippines' House of Representatives by Hon. Romeo D.C. Candazo on September 30, 1998. In Japan, many civil and women groups sent welcome statements to the UN and are circulating it to the Diet and it will be translated and published by a women group network against violence against women during wartime (VAWW-NET Japan, Representative, Ms Yayori Matsui). The VAWW-NET Japan and other NGOs are planning to hold two Women's international tribunals on violence against women during wartime in December 2000 in Tokyo.
The Sub-Commission, the name of which was changed in 1999 to "Sub-Commission on the Promotion and Protection of Human Rights", made the landmark resolution that supported the legal arguments made by the NGOs including IFOR represented by this author. Its resolution 1999/16 on "systematic rape, sexual slavery, and slavery-like practices"(E/CN.4/Sub.2/RES/1999/16,
http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/e421ae865b4dbb42802567 ed0047c12d?Opendocument) "was adopted by a hand-count vote of 15 in favour and 2 opposed, with 5 Experts abstaining, said, among other things, that the rights and obligations of States and individuals recognized by international law with respect to these violations could not be extinguished by peace treaty or amnesty." according to the UN press release (HR/SC/99/30 of 26 August 1999). The concerned NGOs as well as civil and women groups might go to the Commission on Human Rights, which would be held in March - April 2000, so that they could work for the Commission's endorsement of this Sub-Commission's resolution. Under these circumstances, the concerned civil and women groups may send its representatives not only to the WG session but also the Commission and the Sub-Commission in 2000 on to support Ms McDougall's report. They may submit any relevant information to the UN and lobby encouraging them for further actions.
Indeed, the author is very sorry, as a Japanese male citizen, that he has not succeeded in persuading the Japanese government to accept the recommendations from the UN and ILO bodies. It may be necessary for us to analyze the possible reasons, why Japan is so bad in accepting the fact.
The Japanese government has not given up the policy of the Asian Women's Fund that, I believe, symbolizes three aspects of the Japanese government's attitude as pointed out by Mr Koki Abe, a Japanese scholar of international law: Racism, colonialism and state-ism, namely state-oriented-undemocratic-philosophy. These were particularly dominant in pre-war Japan. I do not go into this in details, but one may confirm the historical fact that the Japanese governments after WWII never officially recognized the war crimes committed by the Japanese military during the 15-year war nor apologized for the illegal colonization of the Asian nations such as Korea. The Japanese Emperors' governments and military on their fanatic belief that the Japanese people, namely the subjects of the divine Emperors were superior to other Asian peoples committed all these. And the conducts of "advancement" to Asia by Japan were claimed as the actions for self-defense against the West in protection of the Asian peoples, and therefore there was no "invasion" against Asia according to their interpretation. There existed no drastic change in the attitude of the Japanese people at the "end" (not defeat) of the war. These thoughts possessed by most of the post war conservative Japanese governments and majority of the Japanese people have survived till today.
This is the reason why the Japanese governments have failed in sincerely acknowledging the "invasion" of Asia. I often recalled the Litton Report made by the League of Nations in 1932, which found the conducts of the Japanese Army in Manchuria in 1931 had been aggression. Japan never accepted this report and the subsequent actions taken by the League of Nations. Japan protested against and withdrew from the League of Nations and continued the military aggression against China and other Asian nations towards 1945 until the Allied Nations defeated it. Japan, however, has never officially accepted these aggressions as illegal under international law, although all of the judgments of war crime tribunals including the International Military Tribunal for the Far East were accepted by Japan under Art. 11 of the San Francisco Peace Treaty. (In passing, no Japanese Prime Minister has acknowledged that Japan colonized Korea illegally in 1905 and 1910.) Ms Coomaraswamy's report on military sexual slavery, which came from the UN in 1996 was the second international finding on the war crimes of Japan following the Litton Report, has not been accepted by Japan. The ILO Committee of Experts Report of 1996 and 1997 are the third of this kind. Ms McDougall's report is the forth. This means that Japan has not changed yet. Japan has been keeping the traditional attitude that it disregards international law and it does not accept the recommendations and interpretations of international law by the international bodies, in particular when it comes to the issue on war or war crimes.
This denial by Japan should be scrutinized and overcome by a long lasting international campaign for the implementation of the recommendations from Ms Coomaraswamy, the ILO Committee of Experts and Ms McDougall.
However, we should note some healthy and undeniable developments in Japan. There emerged, in recent years, an increasing number of male and female citizens, historians, lawyers, journalists, politicians, who are aware of the facts; who are willing to accept the historical facts as war crimes committed by the Japanese; and who are working in letting the state of Japan take its state responsibilities. This is a hope for new Japan. Although it will take some time for them to become majority, they are becoming a formidable power and willing to cooperate with and fight for the victims and peoples in Asia.
In April, 1998, the Shimonoseki branch of the Yamaguchi Prefectural Court ordered Defendant Japan to pay compensation to the ex-"comfort women" plaintiff for Defendant National Diet Members' failure to carry out the constitutional duty to enact an appropriate compensation law (see: Author's "Commentary on a Victory for "Comfort Women": Japan's Judicial Recognition of Military Sexual Slavery", Pacific Rim Law and Policy Journal, Vol.8 No.1 January 1999, pp.47-61.; Translated by Taihei Okada, "The "Comfort Women" Case: Judgment of April 27, 1998, Shimonoseki Branch, Yamaguchi Prefectural Court, Japan", Id., pp.63-108.).
The Judgement recognizes that the Diet members have the duty to enact the law to compensate the victims and that they have failed to do so.
Since it took a clear stance against the legislature, it is politically important and will help the lobbying activities. In contrast to the recommendations from the United Nations or the Japan Federation of Bar Associations (JFBA), which were helpful but did not impose any legal duty, this judgement will force the Japanese government to act as it orders, if it is put into effect. Along with the JFBA, this author has worked to pressure the Japanese government, so that the judgement satisfies him personally. This judgement was made possible by the courage of the plaintiff, by the widening support in domestic as well as international arenas such as the United Nations and International Labor Organization and by the strong efforts of the support group members and concerned lawyers.
The judgement touches the heart of the "comfort woman" issue. First, in reference to finding the truth about the matter, the court considered to be true not only the unchallenged claims but also the claims based on the personal experiences of the plaintiffs. The latter may lack objectiveness. Nevertheless, the court stated, "these testimonies should be believed to be true given the personal nature of the content" and "(the court) considered all of them to be sound evidence." The judgement recognized:
”...the court recognizes the fact that the "comfort woman" plaintiff were forcefully taken to the comfort stations without knowing they would have to serve as a "comfort woman"; that they were raped and forcefully turned into "comfort women"; that the comfort stations were deeply related with the Imperial Japanese Military and until the end of war in August of 1945, they were forced to have sexual intercourse primarily with Japanese imperial soldiers; and that they had had to hide their past as comfort woman until the instituting of this case."
This recognition will have a major impact on the textbook issues as well.
For the legal interpretations that directly concerns the "comfort women" issue, in light of making the legislation possible, there are following important points:
"There [was] no interaction other than sex. The soldiers [came to the comfort station] purely for sex. The comfort women [were] simply the necessity for the comfort station. This institution was designed for just sex and the release of sexual desire. Given the purpose and day-to-day reality of the comfort station as described above, the comfort women were sex slaves.
The comfort woman system could have been a violation of the International Convention for the Suppression of the Traffic in Women and Children (1921) or the Forced Labour convention (1930). ... the comfort woman system was extremely inhuman and horrifying even [in] the standard of the civilized state in the middle of the 20th century.
... since Japan had known the facts about the comfort women for such a long time, by refusing to provide the measures for many years since the enactment of the Japanese Constitution, it doubled the plaintiffs' suffering. In other words, the failure to legislate the necessary law caused another violation of the personhood of the comfort women.
... Germany, the United States and Canada had already enacted certain laws to apologize and compensate the foreign victims whose rights were violated by the state (Separate Sheet 1 and 2; both parties are in agreement). Given these facts and the notion that the comfort women system stands side by side with the Nazi war crimes in its scope of human rights violations, the failure to legislate the law for the official apology and compensation further violates the human rights of the victims. At latest, soon after Cabinet Secretariat's comment on August 4, 5th year of Heisei (1993), enactment of such a law became the constitutional duty of the government. By the end of August, 8th year of Heisei (1996), three years after the comment, there has been reasonable time for the legislation. At this point of time, the failure to enact the law became illegal according to the State Tort Liability Act."
Needless to say, these statements were given by a national institution, namely the court. They were put forth in order to write a judgement. However, we should all remember that in addition to the recognition of the facts, the court judgement itself restores the honor of the victims.
The biggest problem is that the government of Japan did not accept this judgment and appealed to the Hiroshima High Court. Few observers expect it will be upheld by the higher courts including the Supreme Court.
On October 9, 1998, the victims and supporters were saddened by the Judgment by a chamber of the Tokyo District Court that rejected the claims made by the Philippines' sexual slavery victims. The court not only ruled that there was no customary international law, which gave individuals the right to compensation against the state of Japan without being represented by their home state but also turned down all of the legal arguments raised by the lawyers for plaintiff.
Another unfavorable judgement for the Dutch victims on November 30, 1998 was issued by another chamber of the Tokyo District Court on nearly the same reasons despite its recognition that the conducts committed by the Japanese military against the "comfort women" victims violated the provisions of international humanitarian law. While pessimistic views are prevailing, one thing sure is that not many victims may survive to see the consequences of the domestic judicial process. Expeditious extraordinary measures should be taken, as the UN Special Rapporteurs such as Ms Coomaraswamy and Ms McDougall as well as the ILO Committee of Experts recommended to the Japanese Government.
Responding to the recommendations made by the 1995 Sub-Commission, an attempt for a solution through legislative measures in accordance with the UN recommendations was made by some Diet Members and supporters of the victims including this author. The UN suggested that Japan might establish an administrative tribunal to settle the military sexual slavery victims' claims or to settle the case through international arbitration procedures such as that of the Permanent Court of Arbitration. As a result, Mr. S. Motooka and 25 Members of the House of Councilors submitted a "Bill for establishment of fact-finding committee on the issue of the victims of sexual coercion during wartime" to the House in June 1996. This was aborted with no debate. Further movements for legislative measures are continuing (E. Totsuka, "International Legal Issues between ROK and Japan concerning Comfort Women", In: Lee, Jang-Hie (ed.), International Legal Issues between Republic of Korea and Japan (1998). pp. 63-88.). Another legislative proposal is being made by many Members of the House of Representatives organized "the Hon. Mr K. Tanaka, and represented by Co-Chaipersons the Hon. Ms.Toshiko Hamayotsu, Member of the House of Councilors and the Hon. Mr. Yukio Hatoyama, Member of the House of Representatives."
A Bill for establishing a fact-finding bureau in the Diet Library concerning atrocities during WWII including that of "comfort women" is pending in the House of Representative.
As far as the current AWF policy of the Japanese government goes with no radical change, the aggressive negative lobbying by the ruling Liberal Democratic Party, the Foreign Ministry, some part of the AWF and conservative groups will delay these movements. It is regrettable to predict that, without much stronger pressures such as the A.J.R. No. 27 Resolution on War Crimes by Japan during WWII, which was submitted by Hon. Honda and adopted by both Houses of the California State Legislature in August 1999, no radical change in Japan would become actualized.
It is true to say: "There can be no illusions. Japan cannot keep peace in Asia when it is not at peace with its own history." (Won Soon Park, "Japanese Reparations Policy and the "Comfort Women" Question", In: special issue the comfort women, positions east asia cultures critique, vol.5 No.1 (spring 1997). pp. 107-134.)
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