Postwar
responsibilities
Non-fulfillment
of obligations for apology, compensation, and punishment
Etsuro
Totsuka
27
September 2000
(Part I)
The
Japanese government has been psychologically injuring the victims of "comfort
women" and damaging their honor and dignity by continuous and repetitive
denials, lies, and distortion. These
include denials of the facts and their legal rights and status as a victim as
well as propaganda through the Asian Women Fund.
Denial of the facts:
In
June 1990, Mr. Shoji Motooka, then Socialist Member of the House of Councilors
of Japan demanded the Japanese government to investigate the nature of war-time
"comfort women" (S. Motooka, Songoku giin hunsenki, Hyougo geijyutsu
senta (1997). pp. 159-204.). Although
they were minority, there exist, inside Japan, some Diet Members like him, who
have been sincerely working for revealing the truth of war crimes committed by
Japan. The government denied any involvement of the Japanese military in the
"comfort women" operation and refused to start any investigation. Instead, they claimed that the private
entrepreneurs recruited women and they followed the armies.
Forces
against the Japan's denials: This
denial made many South Korean women organizations including the Korean Council
for the Women drafted for Military Sexual Slavery by Japan angry and they sent
the Japanese government a series of protests demanding a just solution.
At last, a courageous "comfort woman" victim, Ms. Kim, Haksun
came forward in South Korea in August 1991 (K. Howard (ed.), True stories of
Korean comfort women, Cassell (1995). pp. 32-40.)
Three South Korean "comfort women" including her went to a
Japanese court in December 1991. These
continuous pressures from the people of a victimized country, have been very
strong outside forces since then.
Prof.
Yoshimi Yoshiaki, the Japanese historian, who unearthed some vital documents,
which reversed the denial by the Japanese government of the truth on the
"comfort women" issue, succeeded in his press campaign in January 1992
(Y. Yoshimi, Jugun ianhu shiryousyu, Otsuki shoten (1992) p. 599.). These media
reports impressed many conscientious Japanese.
Some objective historians and media inside Japan have been making
substantial contributions in revealing the truth not only in this issue but also
in other areas concerning atrocities committed by the Japanese Forces (See:
Kikan Senso sekinin kenkyu (A quarterly journal: The Report on Japan's War
Responsibility), autumn 1993-present, published by Japan's War Responsibility
Data Center.).
Then,
the International Educational Development (IED), a NGO decided to take up this
issue at the UN Commission on Human Rights in February 1992. A Japanese
representative of IED did so, even when the victims had not exhausted domestic
remedies such as the court procedure. It was because IED knew that three most
powerful forces inside Japan, namely the Judicial, Executive, and Legislative
branches, which were controlled by the conservatives would not effectively
function in giving expected expeditious remedies for the old victims of this
type. Cooperating with Mr.
Motooka's office, IED made an oral intervention before the UN Commission on
Human Rights in February 1992, in which Japan was condemned for its crimes
against humanity onto the Korean and other Asian "sex slaves" (UN doc.
E/CN.4/1992/SR.30/ Add.1.).
This
was followed by consistent and persistent activities made by more influencial UN
NGOs such as the International Commission of Jurists, the World Council of
Churches, the International Fellowship of Reconciliation, the International
Association of Democratic Lawyers, Liberation, and World Alliance of Reformed
Churches as well as many local civil groups outside of and inside Japan for 8
years, they attended nearly all of the UN human rights meetings, in particular
the Working Group on Contemporary Forms of Slavery, the Sub-Commission on
Promotion and Protection of Human Rights, and the Commission on Human Rights.
Thus, they succeeded in proving the capacity of the UN over the issue of
military sexual slavery by Japan and secured some resolutions, reports,
recommendations from the UN and ILO bodies against Japan.
Good
evidence may make forces of persuasiveness, even if it is presented by only one
person (Yoshimi, op, cit.). Testimonies
of the victims were well researched by Korean scholars (Keith, op. cit.).
Japanese historians' researches (Center for Research and Documentation on
Japan's War Responsibility, The Report on the Issue of Japan's Military
"Comfort Women" (1994)) were submitted to the UN WGCFS.
Sound and well developed legal arguments can be also strong forces.
A mission report by the International Commission of Jurists (U. Dolgopol
& S. Paranjape, Comfort Women an unfinished ordeal (1994), ICJ. p. 205.)
gave a strong impact to the UN and world public opinion.
The International Fellowship of Reconciliation (IFOR) and the Japan
Fellowship of Reconciliation (JFOR) submitted presented some new legal aspect in
their written statements to the UN (UN Doc. E/CN.4./1993/NGO/36;
E/CN.4./1994/NGO/19; E/CN.4./Sub.2/1994/NGO/30; E/CN.4./1995/NGO/37;
E/CN.4./1995/NGO/40; & E/CN.4./Sub.2/2000/NGO/12.). The Japan Federation of
Bar Associations clarified some vital legal issues including treaty defense of
the Japanese government in their two legal opinions (Recommendations on the
Issue of "Comfort Women" (January 1995) & Supplementary
Explanation of the Recommendations on the Issue of "Comfort Women"
(June 1995).). The Federation of
Korean Trade Unions submitted a few communications including a detailed legal
analysis ("Comfort Women" Military Sexual Slavery by Japan (1997).)
concerning Japan's violations of the Forced Labour Convention to the ILO
Committee of Experts.
Japan's Partial admission of the facts and the Asian Women's Fund Policy:
Under
these continuous international pressures, the official investigation demanded by
the ROK government was launched by the Japanese government.
On the basis of this, the facts that the victims were coerced into sexual
slavery by the Japanese military, were, for the first time, acknowledged by then
Chief Cabinet Minister, Mr. Yohei Kono in August 1993.
However, the Japanese government refused to acknowledge any legal
responsibilities over this issue and any further fact-finding effort by the
Japanese government was terminated.
On
31 August 1994, P.M. Mr. Tomiichi Murayama launched the idea of a private fund
for "measures in lieu of compensation". This "Murayama Plan" became the fundamental basis
of the creation of the "Asian Women Fund". The private Fund was jointly set up by some citizens and the
Japanese government, who understood that the State of Japan had no legal
responsibility and that the State could not take its state responsibility.
Aggravated international relation:
Up to August 2000, there was no change in the Japanese Government's policy. However, the private fund policy of Japan has been facing the aggressive resistance from the victims and this resulted in the aggravated international relationship of Japan with the Asian victimized Nations, such as the ROK, the Philippines and Taiwan. Although the Japanese Government has been insisting that the Asian Women's Fund Policy is the only answer, there was no end of debates at the international organizations.
Despite the vigorous and consistent protests and refusals from many victims and NGOs in the ROK, Taiwan and the Philippines, Japan started the implementation of its policy of the private fund, namely the Asian Women Fund in August 1996 in the Philippines. The AWF secretly paid the money to 7 victims in the Republic of Korea in January 1997 and the Japanese Government was severely protested by the Government of the ROK. Neglecting the strong protest from all sectors including the administrative authorities, the AWF started its implementation in May 1997 in Taiwan. The way of persuasion of the victims employed by the Japanese Government and the Asian Women Fund is causing enormous stress among many victims. Contradicting with the terms of so-called OWABI of P.M. Hashimoto, such a way employed by the AWF looks like a fight not sincere apology.
This policy is hardly seen as a positive step towards reconciliation with the victims as a whole. Many victims are refusing the money from or through the private fund and demanding direct state compensation, as it was the state military that was responsible for the crimes of sexual slavery against them. They say "We want honor and dignity, not charity money." Except for some victims among 300 in the Philippines, Taiwan and in the Republic of Korea, substantial number of the victims are still refusing it. Some victims in the Philippines received the money from the AWF and sent back the letter from the PM to Japan, as they could not take it as a proper apology.
At the UN human rights meetings such as Commission on Human Rights in March-April 1997, many speakers including the governments of North and South Korea as well as the NGOs such as World Alliance of Reformed Churches, International Commission of Jurists and All China Women's Federation, rejected "atonement money" offered by the Asian Women's Fund, a private fund set up by the Japanese government.
At
the International Labour Conference in June 1996, 1997,1999 and 2000 there were
heated debates responding to the repots from the ILO Committee of Experts.
Further refusals by Japan:
The Japanese government has been refusing any of the constructive proposals and criticisms mentioned above. They seem to be controlled by extremely right wing politicians who advocate the past war as a "defensive war" denying any responsibility of the 15 year war. The government offices, which destroyed most of the written documents at the close of the war in order to evade the punishment for war crimes, are still withholding existing materials and information on war crimes committed by the Japanese military. Some conservative politicians are claiming "Comfort women engaged in commercial activities." and "There were no comfort women.
The
Japanese government led by then P.M. Mr. Ryutaro Hashimoto, who had been the top
leader of the Japanese ex-soldier's bereaved family's association before he
became Prime Minister, argued that the issue of reparation was settled by peace
treaties and that the Government would never pay compensation to the victims. In
his letter to the victims in the Philippines issued on 14 August 1996, he
expressed his "personal feeling", and this made his statement
ambiguous. Many NGOs criticized
him, as he tried not to clearly represent the State of Japan. He even failed to admit the fact that the victims were
coerced into sexual slavery by the Japanese military, which was once
acknowledged by then Chief Cabinet Minister, Mr Yohei Kono in August 1993.
Earlier,
despite the strong lobbying made by the Japanese Government, the UN Commission
on Human Rights rejected Japan's demand for rejection of Ms Coomaraswamy's
mission report on military sexual slavery, on 19 April 1996.
The Commission adopted its resolution 1996/49 (para. 1) on the
elimination of violence against women and welcomed her work and took note of her
report (E/CN.4/1996/53 and Add.1 and Add.2) including the mission report on
military sexual slavery (Add.1) mentioned above. The Commission also condemned
violence against women during wartime, in particular sexual slavery as violation
of international law (para.5 of the same resolution).
However,
the Japanese government insisted at the National Diet that the Government did
not respect her recommendations, claiming that "Her report was not adopted
by the UN Commission on Human Rights" and that no positive decision was
made by the UN (Statement made on 16 May 1996 by Mr Kazuo Asakai of the Foreign
Ministry at the Committee of Legal Affairs of the House of the Councilors).
The Government implied that her report was virtually rejected by the UN.
The Japanese Government has been insisting that the term "take note"
has no positive meaning.
The
AWF was created on the basis of the Japanese government interpretation of law
that no legal duties for compensation to individual victims exist due to the San
Francisco Peace Treaty and other bilateral treaties between Japan and the
victimized countries. The
government has been refusing to take any other policy than the AWF.
The
Special Rapporteur, Ms. R. Coomaraswamy, in her report, rejected this policy of
the Japanese government with the following interpretation of the AWF:
"VIII.
MORAL RESPONSIBILITY
"125.
The Government of Japan has not accepted legal responsibility but in many
statements appears to accept moral responsibility for the existence of
"comfort women" during the Second World War. The Special Rapporteur
considers this a welcome beginning. Documents handed to the Special Rapporteur
by the Government of Japan included statements and appeals accepting moral
responsibility for the problems of the so-called ‘comfort women'. The
statement made by Chief Cabinet Secretary Yohei Kono on 4 August 1993 accepted
the existence of comfort stations, as well as the direct or indirect involvement
of the then Japanese military in the establishment and management of the comfort
stations and that, although recruitment was carried out by private recruitment,
it was done at the request of the military. His statement further recognized
that, in many cases, ‘comfort women' were recruited against their will and
had to live in misery at comfort stations in a ‘coercive atmosphere'.
"126.
The Government of Japan ‘sincerely apologizes and [expresses its] remorse to
all those, irrespective of place of origin, who suffered immeasurable pain and
incurable psychological wounds'. In that statement, the Government of Japan
expressed its ‘firm determination never to repeat the same mistake and that
they would engrave such issues through the study and teaching of history'.
"127.
It was also announced to the public that as a result of the discussions between
President Roh Tae Woo of the Republic of Korea and Prime Minister Miyazawa of
Japan, a special study was commissioned by the Government of Japan. Former
military personnel and former ‘comfort women' were present at in-depth
hearings conducted by the Government of Japan. Important government institutions
were also covered by the study, including the National Police Agency and the
Defence Agency.
"128.
On 5 July 1992, the Government of Japan announced the results of the study as
conducted up to that time, a document which was also given to the Special
Rapporteur. It stated that ‘comfort stations were established in various
locations in response to the request of military authorities at the time'. It
claimed that "comfort stations existed in Japan, China, the Philippines,
Indonesia, the then Malaya, Thailand, the then Burma, the then New Guinea, Hong
Kong, Macao and the then French Indo-China". It accepted the fact that the
Japanese military directly operated comfort stations. "Even in those cases
where the facilities were run by private operators, the then Japanese military
was involved directly in the establishment and management of comfort stations by
such means as granting permissions to open the facilities, equipping the
facilities, drawing up the regulations for the comfort stations that set the
hours of operation and tariff and stipulated such matters as precautions for the
use of the facilities."
"129.
The document also stated that ‘these women were forced to move with the
military under constant military control and that they were deprived of their
freedom and had to endure misery'. The study came to the conclusion that,
although recruitment in many cases had been carried out by private operators,
the recruiters resorted to ‘coaxing and intimidating' these women who were
recruited ‘against their will'. The study further states that there were
cases where administrators and military personnel took direct part in the
recruitment. Finally, the study states that the Japanese military approved and
organized the transport of ‘comfort women' and that the Japanese Government
issued certificates of identification.
"130.
Individual members of the Government of Japan have expressed their remorse. In a
statement issued on 31 August 1994, Prime Minister Tomiichi Murayama stated
‘on the issue of wartime 'comfort women', which seriously stained the honour
and dignity of many women, I would like to take this opportunity once again to
express my profound and sincere remorse and apologies'. In
the same context, he announced the Asian Peace, Friendship and Exchange
Initiative to coincide with the fiftieth anniversary of the end of the Second
World War. The Initiative would lead to support for research and the
establishment of an Asian Historical Documentation Centre so that people can
‘face squarely the fact of history'. It would also provide for the setting
up of exchange programmes to promote dialogue and mutual understanding between
Japan and the countries of the region. Though not aimed at ‘comfort women'
in particular the Initiative was said to be based on the Prime Minister's
‘profound remorse for acts of aggression'.
"131.
Finally, Chief Cabinet Secretary Kozo Igarashi issued a statement on 14 June
1995 as follow-up to Prime Minister Murayama's statement, saying that in
accordance with the discussions of the Ruling Parties Project Team for Fiftieth
Anniversary Issues, and based on ‘remorse' for the past, there would be an
attempt to set up an Asian Peace and Friendship Fund for Women. The responsible
officials in the Office of the Prime Minister explained to the Special
Rapporteur the detailed workings of the Fund, the principal objectives of which
go beyond the payment of compensation to surviving women victims to include:
"(a)
Raising of funds from the private sector as a means to enact the Japanese
people's ‘atonement' for the suffering of former wartime sexual slaves;
"(b)
Supporting projects in the field of medical care and welfare in support of
former ‘comfort women' victims from governmental and other sources;
"(c)
Through the implementation of the Fund's projects, the Government would express
its feelings of remorse and sincere apology to all former ‘comfort women'
victims;
"(d)
Collating historical documents on the ‘comfort women' establishment in order
‘to serve as a lesson of history'. The Special Rapporteur learned that these
and other documents relating to modern Asian history will be exhibited publicly
in a proposed Centre for Modern Japan-Asia Relations;
"(e)
Support projects by non-governmental organizations in the Asian region and, in
particular, in countries from which ‘comfort women' victims were drawn, in
the field of the elimination of contemporary forms of violence against women,
such as trafficking and prostitution.
"132.
The Special Rapporteur inquired as to the purpose of raising money from the
public for the Fund. She was informed that, as announced by Chief Cabinet
Secretary Igarashi on 14 June 1995, the establishment of the Fund should be
construed as an effort by the Government of Japan, together with the Japanese
people, ‘to find an appropriate way to enable a wider participation of the
people to share feelings of apology and remorse'. The Fund is, in addition,
intended to promote mutual understanding with the countries and areas concerned
by the issue of ‘comfort women', as well as for the Japanese people ‘to
face squarely the past and to ensure that it is rightly conveyed to the future
generations'. This is why the Government has decided to seek funding from
private sources for the Fund. The Government has itself earmarked 500 million
yen (approximately US$ 5.7 million) to cover the administrative costs of the
Fund, as well as to finance medical and social welfare programmes for women
victims, as referred to above.
"133.
Since her visit to Japan the Special Rapporteur has received additional
information from the Government of Japan, according to which a total of US$ 1
million had been received, as at the time of writing, in donations, mostly from
individuals. The Special Rapporteur has also been informed that trade unions,
enterprises and private institutions are expected to contribute to the
fund-raising process and that the Fund will receive a legal personality and the
status of a non-profit organization.
"134.
In the light of the above, the Special Rapporteur sees the Fund, as created, as
an expression of the Japanese Government's moral concern for the fate of
‘comfort women'. However, it is a clear statement denying any legal
responsibility for the situation of these women and this is reflected in
particular in the desire to raise funds from the private sector. Although the
Special Rapporteur welcomes the initiative from a moral perspective, it must be
understood that it does not vindicate the legal claims of "comfort
women" under public international law.
"135.
The Special Rapporteur notes with interest the information received that the
Government of Japan intends to contribute to a programme of work on violence
against women by the United Nations Development Fund for Women. This is most
welcome and displays a commitment to the general principles of international law
which protects women victims of violence. "
Legal responsibilities of Japan still exist:
Following
Ms. Coomaraswamy's report, which confirmed the ICJ report and clearly
recommended the Japanese government to take its state legal responsibility to
the individual victims and to punish the perpetrators of the crimes against the
women victims, the Final Report on systematic rape, sexual slavery and
slavery-like practices during armed conflict (E/CN.4/Sub.2/1998/13.) submitted
by Ms. Gay McDougall to the UN Sub-commission on Human Rights gave Japan similar
recommendations. Despite the
Japanese government arguments, including the San Francisco Peace Treaty and
other bilateral treaties, Ms. McDougall's report found in details that Japan
is still bound by legal duties not only to pay compensation to the individual
women victims but also to punish those responsible for the crimes against the
victims the as follows:
"VII.
CONCLUSION
"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 Nurnberg 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 centres. 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."
This
view was reiterated by the update to her final report (E/CN.4/Sub.2/2000/21).
Her final report and the update to it were warmly welcomed by not only
many NGOs but also the Sub-Commission resolutions (1998/18, 1999/16 and
2000/13).
Further,
the following two points in Part II as regards the treaty defense submitted by
the Japanese government would strengthen her view.
(Part II)
I. "Comfort women": a case of impunity
– Duties for compensation due to non-punishment:
The
following argument will approach the question of impunity in relation to the
so-called "comfort women" or sexual slaves for the military, recruited
by the Japanese Imperial Forces during the Second World War.
In
a statement to the UN Sub-Commission on Human Rights in August 1993, Japan
acknowledged the wartime enslavement of the "comfort women" by the
Japanese Imperial Forces and Government. Japan acknowledged that the Asian,
mainly Korean, women were recruited directly by the Japanese Imperial Forces or
those who were instructed by them; that the methods of the recruitment of the
women were coercive or deceptive in general; that they were transported or
deported by the Japanese Imperial Forces, which used various methods including
deportation in Japanese ships; that the victims were taken to so-called
"comfort houses" which were established by the Japanese Imperial
Forces and that the victims were forced into sexual slavery by the Japanese
Imperial Forces
Legal analysis -- customary international law:
The
facts admitted by Japan mentioned above fall within the meaning of
"enslavement", "deportation", "inhumane acts" and
"persecution on political or racial grounds", which are the elements
of crimes against humanity. As a result, not only many UN NGOs but also some UN
experts have defined the actions of the Japanese Imperial Forces against the
"comfort women" as crimes against humanity. It is also believed that
these actions violate the prohibition against slavery and the slave trade under
international customary law, which practices established as crimes well before
the actions in question took place.
Under
these two categories, the actions of the Japanese Imperial Forces are punishable
under international law with no statute of limitations. As a matter of natural
justice, Japan is required to take the necessary measures to punish those who
were responsible for the crimes mentioned above.
Multilateral treaties:
The
Convention concerning Forced or Compulsory Labour (No. 29) adopted by the
International Labour Organisation in 1930 was ratified by Japan in 1932. The
first sentence of article II totally prohibits any forced labour of women. The
Japanese Government acknowledged that coercion was, in general, employed in
recruitment and/or treatment of the "comfort women" victims. Article
25 stipulates that "The illegal exaction of forced or compulsory labour
shall be punishable as a penal offence, and it shall be an obligation on any
Member ratifying this Convention to ensure that the penalties imposed by law are
really adequate and are strictly enforced."
The
International Convention for the Suppression of the White Slave Traffic adopted
in 1910 by the International Conference held in Paris was acceded to by Japan in
1925. This convention is not applicable in colonies and territories unless a
notice to do so was registered by a State party (art. II). However, it is
applicable to the cases of the "comfort women" from Korea and Taiwan
for the following reasons.
The
planning of the "comfort women" system was conceived and supervised by
the Supreme Headquarters of the Japanese Imperial Forces and the centre of the
Japanese Government, whose seats were inside Japan, namely at Tokyo. Thus,
orders, authorizations and permissions for various kinds of actions and
omissions in relation to the "comfort women" were directed by the
authorities from mainland Japan. In many cases, the "comfort women"
were deported in Japanese ships which are considered as Japanese territory. In
all cases, recruitment, enslavement, deportation, treatment and supervision of
the "comfort women" were committed by the personnel of the Japanese
Imperial Forces and/or those who were instructed by them. These personnel were
under the jurisdiction of the Japanese Empire.
Article
1 of the Convention explicitly provides that those who solicited, drew into or
abducted a juvenile woman (younger than 21 years old) for the purpose of
prostitution (even if they obtained consent from the woman) should be punished.
Article 2 also explicitly provides that those who solicited, drew into or
abducted an adult woman using deception or means of violence, coercion, abuse of
authority or any other kind of coercive measures should be punished.
Furthermore, article 3 provides the obligations of the States parties to take
necessary measures in order to ensure punishment of the perpetrators of the
crimes defined by articles 1 and 2, including relevant legislation.
Many
"comfort women" were juveniles when they were taken. Japan
acknowledged that almost all of the "comfort women" were taken by
deception or by coercive measures. Thus these obligations for punishment still
bind the current Government.
Time limitations:
The
actions against the "comfort women" were punishable even by the
domestic law at the time of the Japanese empire. The problem is that Japan may
argue that it is not possible for the Japanese authorities to prosecute any
perpetrator by applying the penal law of the time because of the statutes of
limitation under the Criminal Procedure Act of the time. However, there is no
statutes of limitation as regards the obligations of Japan under international
law.
The
Japanese legislature may raise the legal issues under articles 31 and 39 of the
Japanese Constitution which guarantee due process of law and the prohibition of
retrospective penal legislation. However, article 15 (1) of the International
Covenant on Civil and Political Rights, to which Japan has been a party since
1979, prohibits retrospective penal law in general but allows conviction of any
act or omission which constituted a criminal offence under international law.
Furthermore, article 15 (2) allows "the trial and punishment of any person
for any act or omission which, at the time when it was committed, was criminal
according to the general principles of law recognized by the community of
nations". (See M. Novak, "UN Covenant on Civil and Political Rights -
CCPR Commentary", N.P. Engel, p. 281).
De facto impunity:
Despite
its obligations under international law, Japan has failed to punish even a
single perpetrator of the crimes committed against the "comfort
women", who are estimated to number about 200,000. This non-punishment
should be condemned as one of the worst examples of de facto impunity in world
history.
Discrimination against Asian women:
The
punishment by the war crimes tribunals of the Allied Forces was accepted by
Japan. (Art. 11 of the San Francisco Peace Treaty of 1951). The punishment,
including one death sentence, of 10 personnel of the Japanese Imperial Forces
who had enslaved 35 Dutch "comfort women" victims in Indonesia, was
carried out by the Dutch Military Tribunal in 1948 (See: E/CN.4/1995/NGO/40).
Thus Japan admitted the principles that actions against the "comfort
women" constituted serious offences, which deserved a death penalty when
the "comfort women" were white women. In contrast, Japan has never
acknowledged that the very same crimes when against Asian, mainly Korean,
"comfort women" constituted an offence. This attitude should be
condemned as shameless contempt of and discrimination against Asian women.
The
policy of non-punishment of the perpetrators was made by the Japanese
authorities for the non-Japanese women victims of military sexual slavery,
although the punishment was possible. It was recently found that punishment of
perpetrators of abduction and trafficking in women was actually done for the
Japanese "comfort women" victims under then Japanese criminal law.
The Judgment of then Supreme Court of Japan on 5 March 1937, which
punished 6 Japanese abductors of 15 Japanese women to a Navy "comfort
station" in China in 1932, was reported by the Mainich Shimbun on 6 August
1997. Following this judgment, the
Japanese police (Director General in charge of police of Interior Ministry)
issued a strict order of 23 February 1938 to, in principle, prohibit
transportation of women for prostitution from the Inland Japan to outside Area.
No similar measures for Korean and Taiwanese women have been found.
The policy resulted in the situation where many Korean and Taiwanese girl
children as well as lay women had to suffer as the victims of sexual slavery by
Japan.
This
should be regarded as one of the worst examples of de facto impunity.
Compensation on the ground of non-punishment:
The
final report submitted by the Special Rapporteur of the Sub-Commission on
compensation and rehabilitation for victims of gross violations of human rights,
Professor Theo van Boven (E/CN.4/Sub.2/1993/8), is based on traditional
international law as regards State responsibility. In paragraph 137 of the
report, article 2 of the proposed General Principles implies that a State is
bound by the obligation to compensate if the State breaches the obligation to
punish. Professor Ian Brownlie of Oxford University, in his Principles of Public
International Law (Oxford: Clarendon Press, 1990, pp. 464-465), also supports
this view by citing the Janes case in the 1920s.
Many similar precedents are already known (See: E/CN.4/1995/NGO/37).
However,
the Japanese Government representative refused to admit any legal obligation to
compensate the "comfort women" of South Korea saying that "the
claims issues between Japan and the Republic of Korea have been resolved by an
agreement, signed on 27 June 1965 on the settlement of the problems concerning
property and claims, and on the economic cooperation between Japan and the
Republic of Korea". The obligations, however, for fact-finding and
punishment were not at all resolved by the said agreement, as the terms of the
agreement limit the scope within "the issues as regards properties, rights
and interests ..." (art. 2 of the agreement). Therefore, Japan cannot argue
that the obligation for compensation on the grounds of non-punishment was
resolved by the agreement, as the obligation for punishment has no time
limitation and can never be blocked by the agreement.
II.
"Comfort women": Art. 26 of the SPT and China -- Breaking the
treaty defense
Japan's treaty defense:
Responding
to the Final Report on systematic rape, sexual slavery and slavery-like
practices during armed conflict (E/CN.4/Sub.2/1998/13.) submitted by Ms Gay
McDougall, the Japanese government delegation, said on August 14, 1998 at the
Sub-Commission:
"The
Government of Japan has sincerely addressed and settled the issues relating to
the war in accordance with the San Francisco Peace Treaty, bilateral peace
treaties and other relevant international agreements. ... However, we regret to
say that the 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."
In
her report, the Special Rapporteur, Ms. McDougall already elaborated the logical
reasons why the Japan's treaty defense was not convincing.
We warmly welcome her legal interpretations as well as her conclusion and
recommendations.
We
wish to add another legal ground, which can break the Japan's treaty defense.
One may understand the importance of this argument, as it relates to not
only the "comfort women" issue but also other compensation claims in
relation to the Second World War. We
simplify the issue by confining itself within the right of civilians in relation
to the VI Geneva Convention (1948). It
must apply, however, to Prisoners of War as well (See: Articles 6 and 131 of the
III Geneva Convention.)
We
hope that this statement could assist not only the UN but also its member states
such as the U.S.A., where its Congress and Courts are considering the same legal
issue for the forced labor cases (The LA Times of June 28, 2000. The Japan Times
of June 30, 2000.).
Victims' rights to compensation:
Art.
3 of the Convention (IV) Respecting the Laws and Customs of War on Land, signed
at the Hague, on 18 October 1907 stipulates, "A belligerent party which
violates the provisions of the said Regulations [i.e., the regulations of Land
Warfare annexed to the Convention] shall, if the case demands, be liable to pay
compensation. It shall be
responsible for all acts committed by persons forming part of its armed
forces." This guarantees
individual victims the right to compensation according to the legal opinion made
by Prof Frits Karlshoven (Legal opinion made by Prof Frits Kalshoven submitted
in 1997 to the Tokyo District Court, in Fujita, Hisakazu, et al., ed., War and
the Rights of Individuals - Renaissance of Individual Compensation, Nippon
Hyoron-sha (1999). pp. 1-294.). This
article of the 1907 Hague Convention was understood to have been customary
international law and it was succeeded by Art. 91 of the Optional Protocol to
the 1949 Geneva Conventions. Thus,
the individual civilian victims violated by the Japanese Imperial Forces have
the right to compensation against Japan.
Victims in China:
Although
the Japanese government argues as mentioned above, one should first examine each
case by country basis. Let us take
China for example.
First, it is absurd for Japan to say "sincerely addressed and settled the issue" in the case of China, to which it paid no compensation at all for all the wrong doings including military sexual slavery and massacres of tens of millions of civilians. What are the contents of that sincerity? One may become speechless, if he/she recalls the fact that Japan invaded Korea and China and took a big sum of war reparation from China, namely JP\ 345 million (150% of the Japan's war cost) in 1895 on top of Taiwan as well as de facto control of Korea in the name of victory in war (Kiyoshi Inoue, Nihon no rekishi (ge), Iwanami shoten (1966). pp. 34-40.). This money was not returned to China. Yet, Japan has been maintaining that no single yen should be paid to any Chinese. This denial itself must be considered as the original sin of Japan
Second,
China is not a Party to the San Francisco Peace Treaty.
Therefore, it is not applicable to China.
Third,
the Treaty of Peace between the Republic of China (Taiwan) and Japan of April
28, 1952 became null and void in accordance with the Sino-Japanese Joint
Communique of September 29, 1972.
Fourth,
there exists only one bilateral agreement relative to war claims, the
Sino-Japanese Joint Communique of September 29, 1972. It includes no explicit
provision, which waived the right of individual victims.
According to Art. 5 of the said Joint Communique, " The government
of the People's Republic of China declares that in the interest of the
friendship between the Chinese and Japanese peoples, it renounce its demands for
war reparation from Japan." The
Japan Federation of Bar Associations made public its legal opinion that this
provision did not waive the right to demand reparations for losses and damages
sustained by Chinese nationals (JFBA, "Supplementary Explanation of the
Recommendation on the Issue of "comfort women"" (June 1995). pp.
10-12.). We strongly support this
view.
Prohibition
of relinquishment of the right of victims of war
The
governments of the Parties to the IV Geneva Convention relative to the
protection of civilians must be aware that the Convention, under Art. 148 and
Art. 7, prohibits any agreements for the relinquishment of the rights of the
protected persons.
First,
Art. 148 of the IV Geneva Convention reads "No High Contracting Party shall
be allowed to absolve itself or any other High Contracting Party of any
liability incurred by itself or by another High Contracting Party in respect of
breaches referred to in the preceding Article." Therefore, if any military personnel commit war crimes or
crimes against humanity, which are defined as grave breaches under Art. 147, the
responsible Parties could not be allowed to absolve itself from any liabilities
including responsibility for compensation due to the crimes and other Parties
shall not be allowed to relinquish the rights of the victims without
compensation from the responsible state.
Second,
the second sentence of Art. 7 (1) of the IV Geneva Convention reads, "No
special agreement shall adversely affect the situation of protected persons, as
defined by the present Convention, nor restrict the rights which it confers upon
them." Therefore, the
guarantee under Art. 148 cannot be adversely changed by any other international
agreements.
These
two articles clearly prohibited China and Japan to absolve Japan of the
individual rights to compensation, in particular, if it comes to the issue of
grave crimes. The conducts by the
Japanese Imperial Forces against the Chinese women for sexual slavery is
included in grave crimes in Art. 147, as slavery was the most serious crime
under international law and it must constituted all or any of
"torture", "inhuman treatment", "willfully causing
great suffering" and "serious injury to body or health".
Therefore,
China must have not waived the right to compensation of the individual victims
under Art. 5 of the said Joint Communique, because it is unthinkable that China
intentionally violated international law. Even
if we assume the hypothetical case, where China and Japan tried to waive the
right of individuals, that part of the Joint Communique did not take effect, as
both China and Japan "shall not be allowed" to do so by Art. 147; and
as "No special agreement shall adversely affect the situation of protected
persons".
The Geneva Conventions
relative to China and Japan:
The
Geneva Convention was concluded on August 12, 1949 and took effect on October
21, 1950. Japan acceded to the
Geneva Convention on October 21, 1953 before the said communique.
The Geneva Convention bound China in 1956 well before 1972 as well, as it
was a Party to it. According to the International Committee of Red Cross (SOURCE: UNTS, Vol.260, 1957, pp.438-444.), the status of China relative to the
Geneva Conventions of 1949 is: Signature on 10.12.1949. Ratif. Accession on 28.12.1956.
Conclusion on the Chinese
victims
Therefore,
China and Japan could not conclude any agreement to waive the right of
individual victims under the said Joint Communique. Thus, the right to demand compensation against Japan of the
individual military sexual slavery victims in China was never waived.
Their right must exist even now.
The victims in other
countries than China – Parties to the SFPT:
The
second sentence of Art 26 of the San Francisco Peace Treaty (1951) is stipulates
as follows:
"Should
Japan make a peace settlement of war claims settlement with any State granting
that State greater advantages than those provided by the present Treaty, those
same advantages shall be extended to the parties to the present Treaty."
This
could be understood as a "most favored nations" clause.
The
1972 Sino-Japanese Joint Communique is the peace and war claims settlement
between Japan and China, which was concluded after the 1951 San Francisco Peace
Treaty. In it, China never waived
its nationals' individual rights to war claims against Japan.
Therefore,
under Article 26, the victims of the Parties to the San Francisco Peace Treaty
are entitled to similar treatment. Thus,
Japan should give the same advantages, as if there had been no waiver of the
rights of these individual victims.
The victims in other
countries than China – non-parties to the SFPT
First,
the Democratic People's Republic of Korea is not a Party to the San Francisco
Peace Treaty. Any treaty or
agreement was concluded between the DPRK and Japan.
Second,
for the women victims in Taiwan, there exists no treaty or agreement, which
effectively denies the demands made by the victims.
Third,
the Republic of Korea and Japan concluded in 1965, the Treaty of Basic Relations
and the four cooperation agreements. Japan
claims that they included the issue of "comfort women".
However, Ms Coomaraswamy, the ICJ and the JFBA pointed out that it was
not included.
The
issue of military sexual slavery was not discussed in any part of the
negotiations for the 1965 treaties between the ROK and Japan.
No human rights issues, no personal injuries, and no wrong doings by
Japan during colonization were treated in any of the provisions of the said
treaties. And the victims are still
entitled to demand individual reparation against the Japanese government.
Not only many NGOs including ICJ and IFOR but also the report made by Ms
Coomaraswamy support this view.
The
author wishes to consider some other new aspects. In order to interpret meanings of the terms of the Treaty,
one must examine the intention of the Parties concerned.
First,
Japan had made the existence of the military sexual slavery system as a top
secret until January 1992, when the Government for the first time acknowledged
the existence of the system. It was impossible for the both parties to conceive
an agreement for nothing in 1965. How
can Japan claim that Japan intended to include in the term of the treaties the
system, which did not exist officially at the time?
It
should be noted that, during the course of the negotiation towards the 1965
treaties, the Japanese chief representative, Mr. Kanichiro KUBOTA denied the
existence of any wrong doings by Japan and declared to the Korean
representatives, "If any wrong doings are found later, then the Japanese
Government should pay compensation for them at that time." on 13 October
1953 (The testimony made by the late Foreign Minister of the ROK, Mr. Young-Shik
KIM and it was reported by the Tonga Ilbo dated 16 June 1992).
That
is the reason why the ROK Foreign Minister Mr. Jong-Ha, RYU expressed his
protest to the Japanese Government right after the Japanese Government and the
AWF secretly paid the AWF money to seven "comfort women" victims of
the ROK. He explained to the
Japanese politicians led by Mr. Hatoyama on 13 January 1997 the reason why the
Japanese Government was legally responsible for its state compensation to the
victims and said "the historical facts were unearthed after (the 1965
treaties)" according to some press reports. The ROK Government has been demanding Japan to implement the
recommendations made by Ms Coomaraswamy at the UN human rights meetings such as
the Commission on Human Rights citing the part of her report, which concluded
that this issue was not settled by the 1965 treaties.
Second,
the author wishes to draw the attention of the tribunal to a recent judgment
made by the Toyama District Court of Japan on 24 July 1996.
Three Korean forced labourers during the wartime claimed their wages,
which were not paid by Fujikoshi Company at the end of WWII.
The court found that the right (to wages of the forced labourers) became
claimable at the time when the Government's legal opinion was made, when the
Japanese Government responsible official declared at the Diet of Japan on 27
August 1991 that the individual rights to claims were not relinquished by any
provision of the 1965 Treaties between Japan and the ROK, although the
governmental diplomatic rights of protection were relinquished by the both
governments.
The
court did not, however, grant the compensation, as the judges thought the rights
of the victims became void because of one year (after the time claimable)
statutory limitation under Art. 174(1) of the Civil Code for wages and 20 years
(after the time of the conduct) time limitation under Art. 724 of the Civil Code
for tort. The author believes that this was wrong. The rights guaranteed under
international law, such as the Forced Labour Convention cannot be extinguished
by a provision of domestic law of Japan. The
rights under the Forced Labour Convention has no time limitation.
And international law, in Japan, is superior to any provisions of
domestic laws such as the Civil Code. Crimes
against "comfort women", which constituted war crimes and crimes
against humanity, should not subject to any time limitation.
This
view of this author mentioned above was significantly strengthened by Prof.
Kohki Abe's paper for the US court (DECLARATION OF PROFESSOR KOHKI ABE IN
SUPPORT OF PLAINTIFFS' OPPOSITIONS TO MOTIONS TO DISMISS of July 2000
submitted by Co-Lead Counsel for Plaintiffs to the United States District Court,
Northern District of California. In
re WORLD WAR II ERA JAPANESE FORCED LABOR LITIGATION.), which is attached to
this legal opinion.