COMMENTARY ON A VICTORY FOR "COMFORT
WOMEN": JAPAN'S JUDICIAL RECOGNITION OFMILITARY SEXUAL SLAVERY
Etsuro Totsuka'
Abstract: Despite international condemnation, Japan has done little to recognize its responsibility for forcing over 200,000 "Comfort Women" into sexual slavery for the Japanese Imperial Army during the Second World War. However, in a landmark April 1998 decision, a Japanese court ordered Japan to compensate three Korean "Comfort Women." This was the first time that a Japanese court found in favor of foreign plaintiffs
in a postwar compensation case. The court held members of the Diet negligent under the State Liability Act for failing to enact a compensation law for the "Comfort Women." Although the judgment will almost certainly be overturned, it should have widespread political impact. The court's extensive fact-finding regarding "Comfort Women" will be
hard to challenge and should bolster the movement to have the Japanese Govemment compensate and restore dignity to the "Comfort Women" victims.
There can be no illusions. Japan cannot keep peace in Asia when it is not at peace with its own history.
I. INTRODUCTION
On April 27, 1998, the Shimonoseki branch of the Yamaguchi Prefectural Court ordered the Government of Japan to pay compensation to three Korean "Comfort Women"2 Plaintiffs, victims of sexual slavery by the
' B.S. (1964) and B.A. (1970) Rikkyo University, Japan National Legal Training Institute (1973),
LLM, LSE, University of London (1990). Mr. Totsuka is a member of the Daini Tokyo Bar Association and Japan Federal Bar Association, has been an advocate at the United Nations for victims of wartime sexual slavery by Japan since 1992, and is currently a visiting scholar at the University of Washington. The author would like to acknowledge and thank the editorial staff of the Pacific Rim Law & Policy Journal for patiently harmonizing, brushing up and editing the translation of the judgment as well as this commentary. Particular acknowledgments are due to Donna 0. Perdue for her extensive role in forming, writing and editing this commentary from the original translation of the author's article "Nihon ga shiranai sensou-sekinin no. 54-Kampu-saiban de moto-'ianfu' ni syouso hanketsu" published by Nihon-Hyoron-sha in Hogaku Semina, July 1998, at 37-40; Hiroshi Kushizaki, Chief Editor of Hogaku-Semina for his permission to use the article as the major basis of this commentary; Taihei Okada for his hard work in translating the judgment and assisting translation of the article; Lawrence Repeta for encouraging the author to contribute the translated judgment and this commentary to the Pacific Rim Law & Policy Journal;
and most especially, the living and dead who suffered as military sexual slaves, the many supporters of the victims, and the judges who wrote the judgment. Won Soon Park, JapaneseReparationsPolicy and the "Comfort Women" Question, POSITIONS: E.
ASIA CULTURES CRITIQUE, Spring 1997, at 107. Editor's Note: Throughout this introduction and the case that follows, the term "Comfort Women" remains in quotations in order to avoid full acceptance of this Japanese euphemism.
Japanese Imperial Forces during the war years 1931 to 1945. 3 The Court based liability on the National Diet Members' collective failure to carry out their constitutional duty to enact an appropriate compensation law. The Court summarized the "Comfort Women" issue as follows:
The facts make it clear that the Plaintiffs became "Comfort
Women" through the deception of the probable comfort station
owners, were confined and forced to have sex with the Imperial
Japanese soldiers, and that even after the war, they physically
suffered a great deal. In addition, they suffered much due to
shame.
It is also clear that the "Comfort Women" system was a
manifestation of sexism and racism of the time which severely
violated the dignity of women and profoundly damaged racial
pride; and that it is not the past issue but the ongoing human
rights issue that should be resolved now.4
It is inevitable that the judgment will be overturned on appeal, as the nation of Japan has never before lost a case to foreign plaintiffs on postwar
compensation issues in the courts of Japan. Although this courageous judgment will not be legally binding once it is overturned, the court's fact-finding will have widespread political impact. The court accepted the
testimony of Korean "Comfort Women" as credible, and determined that the Japanese armed forces had a central role in establishing"comfort stations" in which the Plaintiffs had been forced and to managing
serve as "Comfort Women." These court-found facts will be an important tool for political minorities that want Japan to recognize, apologize to, and compensate the victims of its wartime abuses. Supported by the legitimacy
of the judicial fact-finding apparatus, minority political interests may be able to force the Diet to undertake the steps necessary to compensate and restore dignity to the "Comfort Women" victims of Japanese aggression.
3 Between
1932 and the end of the Second World War, the Japanese Government and the JapaneseImperial Army forced over 200,000 women into sexual slavery in euphemistically named "comfort stations" throughout Asia. The majority of these "Comfort Women" were from Korea, but many were also
taken from other Asian countries under Japanese control. 4 Taihei Okada, Translation, The "Comfort Women" Case: Judgment of April 27, 1998,Shimonoseki Branch, Yamaguchi PrefecturalCourt,Japan,8 PAC. RiM L. & POL. J. 63 (1999).
II. BACKGROUND
A. Public Discussionof the "Comfort Women" Issue
In the early 1990s, the issue of "Comfort Women" emerged in public
discourse. In June 1990, Mr. Shoji Motooka, then a Socialist member of the House of Councillors of Japan, demanded that the Japanese government investigate the "Comfort Women" question. The government denied any involvement of the Japanese military in the comfort station operations, and refused to begin an investigation. This official denial led various South Korean women's organizations, including the Korean Council for the Women Drafted for Military Sexual Slavery by Japan, to send the Japanese government a series of protests demanding a just solution to this question. A courageous South Korean "Comfort Woman" victim, Ms. Kim Haksun, came forward with her story in August of 1991. Three South Korean "Comfort Women" including Ms. Kim brought suit in a Japanese court in December 1991, seeking recognition and compensation for Japan's violation of their human rights. Since that time, six suits have been filed in Japanese courts by groups of "Comfort Women" of various nationalities.5
In January 1992, Japanese historian Yoshiaki Yoshimi released vital documents contradicting the Japanese government's denial of an official role
5 Suits against the State of Japan by former "Comfort Women" by date filed and status ofeach case (data as of November 1998 provided by the Horitsu Shinbun-sha, Tokyo):
a) December 6, 1991, Tokyo District Court, by three South Korean women, joined by six more in April, 1992, pending;
b) December 25, 1992, Yamaguchi District Court, Shimonoseki Branch, by three South Korean women, judgment in favor of plaintiffs returned April 27, 1998 (this case), currently on appeal to the Hiroshima High Court;
c) April 2, 1993, Tokyo District Court, by 18 women from the Philippines, joined by 28 more in September 1993, suit dismissed October 1998, currently on appeal to the Tokyo High Court;
d) April 5, 1993, Tokyo District Court, by one South Korean woman living in Japan, pending;
e) January 24, 1994, Tokyo District Court, by one Dutch woman, pending;
f) August 7, 1995, Tokyo District Court, by four Chinese women, joined by two more in February 1996, pending;
g) October 30, 1998, Tokyo District Court, by nine comfort women survivors and one relative of a victim, filed a suit referred to as the "Sansei-sho Case," derived from the Japanese pronunciation of the "Shanxi" province of China, pending.
in wartime "Comfort Women" operations.6 Since the 1992 press release of Professor Yoshimi's information, the "Comfort Women" issue has been investigated by a variety of organizations, both within Japan and throughoutthe world. This author brought the "Comfort Women" issue to the United Nations Commission on Human Rights in February 1992, in a presentationcondemning Japan for its crimes against humanity with respect to the
Korean and other Asian "sex slaves,"7 and has contributed to published studies on the "Comfort Women" issue. 8 Extensive research and debate has been carried out to prepare reportsdocumenting the history and analyzing the legal aspects of the "Comfort
Women" issue. The United Nations has appointed Special Rapporteurs and
made resolutions, recommendations, and reports on the "Comfort Women"
or military sexual slavery issue. The most important of these reports were
submitted by Radhika Coomaraswamy 9 and Gay McDougall.10 Non-
6
Colin Nickerson, Japan Admits Forcing Koreans into Wartime Prostitution, BOSTON GLOBE, Jan.
14, 1992.
A
summary record of the February 1992 speech can be found in U.N. Document
E/CN.4/1992.SR.30/Add.I.
8 Etsuro Totsuka, Military Sexual Slavery by Japan and Issues in Law, in TRUE STORIES OF THEKOREAN COMFORT WOMEN 193-200 (Keith Howard ed., 1995); Etsuro Totsuka, International Legal Issuesbetween ROK and Japan Concerning Comfort Women, in INTERNATIONAL LEGAL ISSUES BETWEEN THE REPUBLIC OF KOREA AND JAPAN 65-88 (Lee Jang-Hie ed., 1998).
9 Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences,
U.N. Commission on Human Rights, 52nd Sess., Provisional Agenda Item 9(a), U.N. Doc.E/CN.4/1996/53/Add.I (1996). This report to the U.N. Commission on Human Rights on the issue of
military sexual slavery found that the conduct against Asian women victims by the Japanese Imperial
Forces should be identified as military sexual slavery, that Japan violated customary international law, andthat Japan is legally responsible for not only compensation to the victims but also for punishment of the perpetrators. The Japanese government challenged her report and raised a number of legal arguments.
'o Contemporary Forms of Slavery, Systematic Rape, Sexual Slavery and Slavery-like Practices
During Armed Conflict, U.N. Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 50th Sess., Provisional Agenda Item 6, U.N. Doc.E/CN.4/Sub.2/1998/13 (1998) [hereinafter Sexual Slavery During Armed Conflict]. Ms. McDougall, a
Special U.N. Rapporteur and an American alternate member of the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, concluded that the major legal arguments raised by Japan
are
flawed under international law. See id. Appendix, An Analysis of the Legal Liability of the Government of Japan for "Comfort Women Stations" Established During the Second World War. Her conclusion wasessentially the same as that of Ms. Coomaraswamy. Ms. McDougall's recommendations identified the need for the following: 1)mechanisms to ensure criminal prosecutions; 2) mechanisms to provide legalcompensation; 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, includingarguments 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
governmental organizations ("NGOs"), labor unions, and professional organizations have also prepared reports providing both documentary evidence and legal analysis. 1
The Committee of Experts of the International Labour Organisation ("ILO") has officially noted that the "Comfort Women" system should be characterized as "sexual slavery" in violation of the ILO Forced Labour Convention, which was in force at the time during which these abuses
occurred. 12 The Committee of Experts recognized that they did not have the power to order compensation for the "Comfort Women" under the Forced Labour Convention, and recommended that Japan, as a signatory to the Convention, 13
should "give proper consideration to this matter expeditiously."
argument that Japan has already settled all claims from the Second World War through peace
treaties and reparations with 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.
USTINIA DOLGOPOL & SNEHAL PARANJAPE, INTERNATIONAL COMMISSION OF JURISTS, COMFORT
WOMEN, AN UNFINISHED ORDEAL (1994). Written statements submitted to the United Nations by the
International Fellowship of Reconciliation include U.N. Documents 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, and E/CN.4/1995/NGO/40.
The Center for Research and Documentation on Japan's War Responsibility submitted The Report on the
Issue ofJapan'sMilitary "Comfort Women" to the United Nations in 1994. In 1995, the Japan Federation
of Bar Associations submitted the following to the United Nations, Recommendation on the Issue of
"Comfort Women" and Supplementary Explanation of the Recommendation on the Issue of "Comfort
Women. " In 1997, the Federation of Korean Trade Unions submitted a detailed legal analysis to the
International Labour Organisation Committee of Experts entitled, "Comfort Women" Military Sexual
Slavery by Japan,concerning Japan's violations of the Forced Labour Convention.
12 Report of the Committee of Experts on the Application of Conventions and Recommendations,
Int'l Lab. Conf., 83rd Session, Report Ill (Part 4A), Convention 29 on Japan, Int'l Lab. Org. (1996).
3Id. This position was later reaffirmed. Report of the Committee of Experts on the Application of Conventions and Recommendations,Int'l Lab. Conf., 85th Session, Report III (Part IA), Convention 29 on Japan, Int'l Lab. Org. (1997).
B. Attitude ofthe JapaneseGovernment
After years of denying that the Japanese military was directlyinvolved in establishing and supervising "comfort stations" during the
Second World War, the Japanese Government finally recognized the extent of its own involvement in an official study by the Japanese Cabinet Councillors' Office on External Affairs entitled On the Issue of Wartime "Comfort Women" and in a statement by then-Chief Cabinet Secretary Kono Yohei, both released on August 4, 1993. Then-Prime Minister Tomiichi Murayama made a weak public apology in July 1995, in which he noted:
[T]he scars of war still run deep ....The problem of the so-called wartime "Comfort Women" is one such scar which, with the involvement of the Japanese military forces of the time, seriously stained the honor and dignity of many women. This is entirely inexcusable. I offer my profound apology to all those who, as wartime "Comfort Women," suffered emotional and physical wounds that can never be closed. 14
Despite apparent factual admissions and vague apologies for its guilt,the Japanese Government continues to deny legal liability for the actions of
Japanese military forces in establishing and managing "comfort stations," and thereby continues to deny liability for violations of the individual rightsof the "Comfort Women" victims. It asserts the following substantive grounds for denying liability:
a) Recent developments or advances in international criminal law may not be applied retroactively;
b) Describing the system of "comfort stations" and use of "Comfort Women" as slavery is not accurate and, in any event, the crime of slavery was not forbidden by an established customary norm of international law at the time of the Second World War;
c) Acts of rape committed in armed conflict were not prohibited by customary norms of international law of the time, nor by the
14 Statement by Japanese Prime Minister Tomiichi Murayama in July 1995, cited in Sexual Slavery
During Armed Conflict, supra note 10., app. 3.
Regulations annexed to the Hague Convention No. IV of 1907; and,
d) The laws of war only apply to nationals of a belligerent state and therefore cannot cover the actions of the Japanese military with respect to Korean nationals, since Korea was annexed to Japan during the Second World War.15
The Japanese Government also argues that individual "Comfort Women" have no right to compensation, as any potential individual claims were fully satisfied by the San Francisco peace treaty which concluded the Second World War, and by other bilateral agreements between Japan and other Asian countries.1 6 Finally, the Government maintains that any civil or criminal claims by "Comfort Women" are now barred by the applicable statute of limitations. 17
The Japanese Government has also attempted to evade official responsibility for "Comfort Women" by establishing the Asian Women's Fund in July 1995, to support non-governmental organizations that focus on women's issues. The Asian Women's Fund supports research and academic study, provides counseling services for women, and holds meetings and conferences to address issues affecting women. With respect to the "Comfort Women," the Fund promotes "the desire to convey to these women the sincere apologies and remorse felt by the Japanese people" through "atonement funds" that are raised from donations made by the Japanese public. The Asian Women's Fund offers consolation money to the "Comfort Women" victims as atonement for Japan's past acts, but this money is not compensation paid in recognition of a legal duty to the victims of Japan's violations of human rights.
15 These arguments are reviewed in Sexual Slavery During Armed Conflict, supra note 10, app. 4,
based on a document distributed by the Japanese Government prior to the 52nd Session of the United Nations Commission on Human Rights. The validity of the Japanese annexation of Korea in 1910 is seriously disputed, as evidence now indicates that the preceding 1905 treaty making Korea a protectorate of
Japan did not take effect, as it appears that individual cabinet members of the then-sovereign Korean Government were militarily coerced.
16 Id.17 id.
III. THE KANPU LITIGATION BROUGHT BY KOREAN "COMFORT WOMEN"
A. Overview ofthe Case
The Plaintiffs in this litigation were three "Comfort Women" and seven forced laborers 18 from the city of Pusan in South Korea. The Plaintiffs filed the lawsuit in the city of Shimonoseki, which is across the Korea Strait from Pusan, making it the nearest Japanese court for these Plaintiffs. In Shimonoseki, the Plaintiffs were represented by local lawyers and supported by local civic groups who assisted with the expenses of the lawsuit. The Plaintiffs' lawyers claimed that Shimonoseki was not only a practical choice, but also represented a strategic choice of forum that might be more likely to serve justice instead of serving entrenched government interests. The Plaintiffs, their lawyers, and their supporters assumed that conscientious judges willing to consider arguments contrary to government claims were not in top positions in large urban areas but, instead, were often transferred to remote districts like Shimonoseki. Thus, it was believed that the Plaintiffs were more likely to receive an impartial hearing and a fair judgment in the Shimonoseki Court than in courts of larger cities.
On April 27, 1998, a three-judge panel, presided over by Chief Judge
Hideaki Konoshita ofthe Shimonoseki Branch of the Yamaguchi Prefectural Court, presented the judgment for the so-called Kanpu case. 19 The judgment recognized that the members of the Japanese Diet had a constitutional duty to enact a law requiring compensation for the "Comfort Women" Plaintiffs, and that they had failed to fulfill this duty. They consequently ordered Japan to pay 300 thousand yen for its failure to abide by the State Liability Act (Kokka Baisho-ho). This judgment was received with jubilation by supporters of the "Comfort Women," although they were disappointed that the judge denied other claims, including compensation for the Teishintai forced labor Plaintiffs, and an apology from a former Minister of Justice whose remarks were claimed to defame the "Comfort Women. 20
"8The forced women laborers were called the Teishintai plaintiffs. Ironically, Teishintai means "voluntary corps." These forced laborers were not "Comfort Women."
" This case is referred to as the Kanpu litigation where "Kan" is short for the city of the court, Shimonoseki, and "pu" is short for Pusan, Korea.
20 The court held that it was beyond the power of the judiciary to force the legislative body to issue an apology.
B. The Court'sLegalReasoning
The Plaintiffs asserted a number of legal theories on which they based their claims of injury and their rights to compensation. The "duty of a moral state" argument invoked both international conventions and domestic
constitutional law to create a duty to restore victims of wartime aggression, and asserted that the statute of limitations did not apply to this duty. Due to ambiguity as to the nature of the asserted "duty of a moral state" and a potential separation of powers violation that would arise from the judiciary ordering the Diet to pass specific legislation, this argument was rejected as
baseless and beyond the power of the court. The court also declined to retroactively apply the "right to live in peace" granted by the current Japanese Constitution. After considering whether the Imperial Meiji Constitution created a right for these Plaintiffs and could still be applied, the court held that there was no basis for the Plaintiffs' request for compensation based on the Article 27 property rights of the Meiji Constitution.
The court finally found a cause of action in tort based on the failure of the Japanese state to enact a compensation law for victims of aggression by the Imperial Japanese Army. The State Liability Act states that when public servants commit a violation of their professional duty that causes injury to an individual, then the nation of Japan or other public institutions will provide compensation. The key question in this case is whether members of the Diet have a "duty" to pass certain pieces of legislation to aid individuals harmed by the state, and whether failure to pass the desired legislation constitutes a breach of duty actionable under the State Liability Act. The court in this case observed that it was following a 1985 Supreme Court judgment holding that:
Concerning the passage of legislation, Diet members are held politically liable in their relations with the people, but are not held legally liable in their relations with individuals. In accordance with the application of Article 1 Section 1 of the State Liability Act, except when Diet members directly and clearly violate the Constitution, their legislative activities cannot be judged to be illegal. 2
21 Kokka baishoho [State Liability Act], Law No. 125 of 1947, art. I.22 Taihei Okada, Translation, The "Comfort Women" Case: Judgment of April 27, 1998,
Shimonoseki Branch, Yamaguchi Prefectural Court, Japan, 8 PAC. RIM L. & POL. J. 63, 97 (1999).
The judges stated that in accordance with the 1985 Supreme Court judgment, the "Comfort Women" case before them was clearly an example of the exception to the rule of legislative immunity. When core human rights of the individual are infringed, the Diet members have the constitutional duty to amend the wrong, and the court has the constitutional right and duty to stop such infringement. The court's duty is not affected by whether the infringement resulted from an existing law or by the failure to legislate a necessary law. The Constitution partitions powers between the legislature and the court, and grants the unique duty and right to the court to guarantee constitutional rights. The judges' analysis concluded that the court has the power to find liability for the Diet's failure to enact a compensation law in the present case, because the Diet members understood the necessity of a law in order to protect human rights, were able to do so,
but have not done so within a reasonable period of time.
The Shimonoseki Court held that enactment of a compensation law became the constitutional duty of the Japanese Diet members shortly after the August 4, 1993, report of Japanese Cabinet Councillors' Office on External Affairs and statement by the then-Chief Cabinet Secretary recognizing the role of the Japanese military in establishing and maintaining comfort stations, admitting that this was a severe human rights violation against women and other races, and acknowledging that the Japanese government should apologize.23 In particular, the statement "we should seriously consider how the Japanese government can express its apology"
created the duty to enact legislation. By August 1996, three years after the official report and comment, the Diet's failure to enact a compensation law ripened into an illegal activity according to the State Liability Act. By focusing on the recent illegal acts of the Diet, instead of the Plaintiffs'
wartime injuries, the court rejected (or, entirely avoided) the Japanese Government's defense that the statute of limitations precluded victims from bringing suit for wartime acts of Japanese aggression.
The court found the Japanese government guilty of negligence for
failing to compensate the "Comfort Women" Plaintiffs, and the court ordered that the "Comfort Women" Plaintiffs be awarded damages. Although each plaintiff had requested 101 million yen plus five percent annual interest on the unpaid amount from February 1993 until the payment is completed, the court awarded each plaintiff only 300 thousand yen plus
23 The Court notes that the latest date at which this duty could have come into being was shortly after the
August 4, 1993 admission of guilt by the Japanese Government. In examining the evidence, the court notes that the "Comfort Women" issue was intemationally known and starting to be discussed in the Diet by May or June of 1990, at which time the unconstitutionality of the "Comfort Women" system was already clear.
five percent interest on the unpaid amount from September 1996 until payment is completed. The Teishintai forced laborer Plaintiffs were not awarded damages under the tort liability theory because the harms they suffered fall within the scope of war reparations. The court also applied contract theory to the claims of the Teishintai Plaintiffs, and held that no contractual duty existed on the part of the Japanese government.
IV. COMMENTARY
A. Legal Significance
The judgment in the Kanpu litigation represents the first time a Japanese court has found in favor of foreign plaintiffs in a postwar compensation case. This case employed domestic tort law, not international law, to reach its ruling. The crucial factor in legal reasoning that led the Shimonoseki Court to find the Japanese Government liable for negligence lay in its willingness to view the "Comfort Women" issue as the kind of exception that imposes a legal liability on the Diet for its legislative activities. Thus, the court was able to follow precedent handed down from the Japanese Supreme Court to reach this innovative interpretation based on reasoning from the facts.
The Government appealed this case to the Hiroshima High Court on May 8, 1998, claiming that the Kanpu judgment transgressed the 1985 Supreme Court precedent. This judgment in favor of the "Comfort Women" will probably be overturned on appeal, as the Japanese Government and much of the Japanese judiciary continue to deny legal liability for past violations of the rights of "Comfort Women." The attitude prevailing in the Japanese courts is illustrated by the recent judgment of the Tokyo District Court dismissing a suit by forty-six "Comfort Women" from the Philippines. 4 In most of the approximately forty ongoing postwar compensation claims filed against Japan by former victims of wartime aggression, Tokyo has sought to invalidate their claims by asserting that individuals have no legal basis to seek governmental redress by invoking international law.25 In the alternative, the defense claims that Imperial Japan's government was not accountable under the state action doctrine, and that any rights the Plaintiffs might have had in the past have now expired
24 Tokyo Court DismissesSex Slave Suit, Refuses to ConfirmAlleged Ordeals, JAPAN TIMES, Oct. 10,
1998, at 1-2. See supra note 5 for additional suits. The Philippine suit was filed in 1993 and in the intervening years, seven of the elderly plaintiffs died waiting for justice. 2 In Japan, international law can be applied directly by courts without any implementing legislation.
under the Japanese Civil Code's statute of limitations. By dismissing these suits, the Japanese judiciary (and, by extension, the Japanese Government) avoided fact-finding to determine whether the incidents and damages alleged by the Plaintiffs actually occurred.
B. The Real Importance of this CaseLies in the Court'sDeterminationof Facts
The Shimonoseki Court made extensive findings of fact with respect to the "Comfort Women" system and the injuries asserted by the Plaintiffs. One outstanding aspect of this case is that a Japanese court found the testimony of Korean "Comfort Women" and forced laborers to be sufficiently credible to establish the facts to which it applied Japanese legal standards. It is impossible to clearly ascertain some details (e.g., exact locations of "comfort stations" or identities of comfort station owners) and it was not proven how the "comfort stations" were established and maintained. The court generously observed that the Plaintiffs' advanced age and humble origins probably contributed to ambiguities and gaps in their testimonies, but "the lack of details did not impair the credibility of the testimonies." It continued:
Furthermore, considering the fact that they had to hide the shameful experience for such a long time, and that the "Comfort Women" Plaintiffs only revealed their experiences for the first time in these proceedings, and that the present testimonies are of their personal experience, the credibility is considered to be quite high. Since there is no counter proof to any of this testimony, it is acceptable.26
The following assertions were found to be true: all of the "Comfort Women" Plaintiffs were brought to comfort stations by deception and forced to become "Comfort Women" by rape; the comfort stations had close relations with the Imperial Japanese forces; and until the end of the Second World War and the Sino-Japanese War in August 1945, the "Comfort Women" Plaintiffs were forced to have sexual intercourse primarily with Japanese soldiers. 27 The court also found that the Teishintai forced labor
26 The "Comfort Women" Case, at 76.27 id.
Plaintiffs were recruited by deception and did not receive the money, training, or education they were promised in exchange for their labor.28
C. These Facts Will Aid Political Lobbying for Resolution of the "Comfort Women" Issue
Although fact-finding by a district court is not binding on appeal, Japanese courts do not often alter the district court's facts unless new evidence has become available to the appellate court. Thus, district court findings of fact are usually respected by the public and by higher courts. In this case, no new evidence is available to contradict the findings of the court, which gave credence to the personal, subjective testimony of the foreign Plaintiffs. Although the Japanese Government relies on legal arguments to
deny liability for the "Comfort Women" victims, it cannot provide contradictory evidence to attack the facts of this case or discredit the international body of evidence documenting the Japanese military's role in the "Comfort Women" system of human rights violations. Even if the legal decision of the district court is overturned on appeal, the facts found by the Shimonoseki District Court have gained legitimacy with the Japanese public and the international community.
On a larger scale, this case demonstrates the power of a remote district court to echo domestic and international opinion concerning the "Comfort Women" issue. The judiciary did not overstep its power by advocating what sort of legislation should be enacted, observing that drafting and enactment of laws properly belongs to the legislature. Instead, the Shimonoseki Court demonstrated that Japanese institutions can rely on Japanese domestic law while following Supreme Court precedent to reach the conclusion that the Japanese Government has a legal duty to compensate "Comfort Women" victims. If upheld by a higher court, this decision could be a much more powerful legal statement than the recommendations of the United Nations and the Japan Federation of Bar Associations, which have no legally binding status. Even the Report of the International Labour Organisation Committee of Experts' finding that the "Comfort Women" system was a violation of the Forced Labour Convention cannot force the Japanese Government to act, even though Japan ratified this ILO treaty in 1932.
Domestic and international groups are increasing their pressure on the Japanese government to accept legal responsibility for the "Comfort
21 Id. at 76-79. For most of the Teishintai forced labor plaintiffs, any income they did receive went
directly into Japanese bank accounts and they could not withdraw any of it, even after the war.
Women" issue and enact legislation to fairly compensate these victims.29
The Kanpu litigation will aid these lobbying activities by providing a court-
29 The following organizations have addressed the "Comfort Women" issue and called for official
acceptance ofresponsibility and victim compensation.
I. On March 6, 1998, the Japan Federation of Bar Associations made a recommendation to the Japanese government for the third time. This recommendation repeated the Bar Association's view that the involvement of the Imperial Japanese Forces in the violation of individual rights and human dignity of the "Comfort Women" requires the Japanese Government to accept responsibility and to enact a fair compensation law, apologize to the victims, and
"restore their honor in an appropriate and concrete manner." The Bar Association continued to
be unsatisfied with the Asian Women's Fund as unacceptable "consolation money" which does
not provide legal compensation for violation of individual rights. See lanfu Mondai: Rippo Kaiketsu wo Saido Kankoku, [Comfort Women Issue: JFBA Again Recommends Legal Resolution], SHUKAN HORITSU SHINBUN, Mar. 13, 1998, at 5.
2.
April 17, 1998, the United Nations Commission on Human Rights unanimously approved a draft resolution to accept the 1996 Coomaraswamy Report, which stated that the Japanese government should take the legal responsibility. The Japanese government co-sponsored the
draft resolution. UN Doc. E/CN.4/1998/54. See U.N. Commission on Human Rights, Resolution 1998/52 I United Nations High Commissioner for Human Rights Webpage
3.
On April 15 through April 17, 1998, the Fifth Asian Alliance Conference for the Resolution of the "Comfort Women" Issues was held in Seoul. Participants came from South Korea, the Philippines, Indonesia, Taiwan and Japan. On April 17, they approved a resolution
demanding that: a) the Japanese government accept its legal responsibility, officially apologize and individually compensate the victims; b) the Asian Women's Fund, which was created so that the Japanese Government could avoid providing official compensation, be abolished; and, c) the Japanese Government fulfill the 1996 recommendations of the United Nations Commission on Human Rights. They also committed themselves to continued efforts to establish the truth and punish those responsible, including compiling a list of"Comfort Women"-related war criminals; establishing a ban on the entry of Japanese war criminals to all countries (especially to the invaded Asian countries), encouraging the establishment of the International Criminal Court, and establishing the "International Women's Tribunal on War Crimes Concerning 'Comfort Women."' Hangukkuchonsindaemunje Taechkkhyobwihoe. Chonsindae Chanyojip 9: Che 5 Cha Ilbongun 'Wiabu' Munje Asiayondaehoewi Pogoso, lje, llbonjonbuwiBaesanuro Haegyollu [Report of the Fifth Asian Alliance Conferencefor the Resolution of the "Comfort Woman"
Issues], 70-71 (1998).
4. On April 21 through April 22, 1998, an international forum to demand the early resolution of "Comfort Women" issues was held in Tokyo. Participants included lawmakers and citizens from South Korea, Taiwan, the Philippines, and Japan. The forum approved a resolution demanding: a) the Japanese government clarify its own legal responsibility as an aggressor; b) the Japanese government clearly and officially apologize to the victims; c) the Japanese government immediately provide individual compensation to the victims; d) the Japanese government investigate what it did in the past, disclose all related documents, and make clear who was responsible; e) the Japanese government improve historical education so that the facts of aggression will be taught accurately; and f) the Japanese government legislate the necessarylaws to fulfill the above objectives. Sengo Hosho Jitsugen FAX Soku No. 216 [Postwar Compensation Facts FAX Broadcast No. 216] SENGO HOSHO NETFOWAKU [THE POSTWAR
COMPENSATION NETWORK], Apr. 26, 1998, at 1-2.
5. On May 14, 1998, the "Forum on the Truth-Finding Committee Law" was held in the Diet
determined set of facts which cannot be challenged without contradictory evidence. These activities will be strengthened by the courageous judgment of the Shimonoseki District Court, even if the court's legal conclusions are overturned on appeal.
V. CONCLUSION
This judgment is a landmark in the movement for resolving the "Comfort Women" issue. First, the court as a competent state organ determined, based on the victims' testimonies, detailed facts demonstrating that the "Comfort Women" system was sexual slavery. Second, although few observers anticipate the Shimonoseki Court's legal interpretation of the Constitution will be upheld by the upper courts, its spirit will enormously encourage the movement to force the Japanese Government to recognize its legal obligations to the "Comfort Women" victims.
The Japanese Government appealed this judgment, which means this litigation is likely to continue for a long time. Because of the lengthy process, most of the elderly victims will not live to see the judicial resolution of their demand for justice. Yet, no one can deny the significance of this judgment as an indispensable step for Japan to become a leader in upholding human rights.
Members' Office Building in Tokyo. Participants included citizens, Diet members and researchers. The war-related issues addressed included "Comfort Women" presented by ground-breaking historian Yoshiaki Yoshimi, biological weapons and poison gas, forced labour, and the Nanking Massacre. Activists for the Truth-Finding Committee Law reported on their attempts to get legislation passed to establish an official investigative committee. Diet Member Koh Tanaka presented the "Bill for Amending the National Diet Library Law," proposed as an alternative to the Truth-Finding Committee Law. In the original Truth-Finding Committee Law, the committee was to be placed under the Prime Minister's Office while under the Tanaka plan, it will be placed in the Library as an independent office. The latter plan will allow investigations to be more objective, given the independent status of the Library and its extensive archives, human resources, and research experience. Such an independent truth-finding committee might empower human rights activists in the Diet by providing credible and reliable information supporting their attempts to compel the Diet to enact compensation laws. Ajia-Taieiyo-Chiiki no Giseisha ni Omoi wo Hase Kokoro wo Yoseru Kai [Society for the Remembrance of Asian Pacific War Victims, Japan], SENGO HOSHo NEWSu NO.30 [POSTWAR REPARATION NEWS No. 30] July 7, 1998, at 1-2.
http://space.geocities.jp/japanwarres/center/english/Warcrime.htm
War Crimes Japan ignores: The issue of
"Comfort women"
-- Achievements in the UN and further Challenges --
Etsuro Totsuka
Bengoshi (Japan); Visiting Scholar, University of Washington
November 30, 1999
[Part I] ACHIEVEMENTS IN THE UN AND FURTHER CHALLENGES
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.)
COOMARASWAMY REPORT
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.
MCDOUGALL REPORT
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
(http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/f6385b3a12d0e9d680256 675004dc643?Opendocument).
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.
THE ILO COMMITTEE OF EXPERTS' OBSERVATION
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.
REMAINING CHALLENGES
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.
[Part II] JAPAN'S ATTITUDE
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.
ASIAN WOMEN'S FUND POLICY
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.
FAILURE OF ACKNOWLEDGEMENT OF INVASION OF ASIAN
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.
POSITIVE SIGNS IN JAPAN
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.
JAPANESE COURTS
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.
JAPANESE NATIONAL DIET
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.)
Etsuro Totsuka
Notes:
Those who wish to know more about the UN/ILO human rights bodies may visit
the following websites:
1. United Nations (UN)
United Nations High Commissioner for Human Rights http://www.unhchr.ch/
UN Human Rights Organizational structure (text version) http://www.unhchr.ch/map.htm
UN Human Rights Organizational structure (image version) http://www.unhchr.ch/hrostr.htm
Commission on Human Rights (CHR) http://www.unhchr.ch/html/menu2/2/chr.htm
CHR's Country and Thematic Special Rapporteurs http://www.unhchr.ch/html/menu2/xtraconv.htm
CHR's Thematic mandates http://www.unhchr.ch/html/menu2/7/b/tm.htm
CHR's Special Rapporteur on violence against women http://www.unhchr.ch/html/menu2/7/b/mwom.htm
Sub-Commission on the Promotion and Protection of Human Rights http://www.unhchr.ch/html/menu2/2/sc.htm
Working Groups of the Sub-Commission http://www.unhchr.ch/html/menu2/2/subwg.htm
2. International Labour Organisation (ILO)
International Labour Organisation (ILO) http://www.ilo.ch/
ILOLEX Document Search http://ilolex.ilo.ch:1567/public/english/50normes/infleg/iloeng/genrepsq.htm
To the home page of the Center for Research and Documentation on Japan's War Responsibility
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