Committee on Economic, Social and Cultural Rights 50th Session ( 29 April-17 May 2013)

Committee on Economic, Social and Cultural Rights
50th Session ( 29 April-17 May 2013)

Japan:

Alternate report

Restoration of the Human Dignity of Surviving Victims
of the Comfort Women System
Submitted by Japan Fellowship of Reconciliation (JFOR)

The subject matter is concerning the following provisions of the ICESCR:
Article 3 – Equal rights of men and women

Japan Fellowship of Reconciliation (JFOR) gives information on the victims of Japanese military sexual slavery, euphemistically referred to as “comfort women,” during World War II. JFOR also considers this issue a serious violation of international humanitarian laws and the most typical case of cruel sexual and racial discrimination. Surviving victims of Japanese military sexual slavery have not yet found legal redress. A total of 234 women were confirmed as former “comfort women” by the Korean government in 1993, but many of these women died of old age, and as of January 2013, there were only 58 survivors in South Korea.
General information

l Concluding observations of the Committee on Economic, Social and Cultural Rights: JAPAN, E/C.12/1/Add.67 (24 September 2001)
Paragraph 53
53. The Committee strongly recommends that the State party find an appropriate arrangement, in consultation with the organizations representing the “comfort women”, on ways and means to compensate the victims in a manner that will meet their expectations, before it is too late to do so.

● Concerning question in the List of issues:JAPAN,
E/C.12/JPN/Q/3 (25 May 2012)
Article 3 – Equal rights of men and women
Paragraph 7
7. Please provide information on remedial and educational steps taken to address the lasting effects of the exploitation of women as ‘comfort women’ on the enjoyment of economic, social and cultural rights by victims, in particular the measures taken to satisfy the moral and material interests of the victims.

● Reply of Japan to the issues raised in paragraph 7 of the list of issues
: E/C.12/JPN/Q/3/Add.1 (14 February 2013)
Paragraph 35-38
35. To begin with, the Covenant is not retroactively applicable to issues that arose before Japan’s conclusion of the Covenant (1979). Therefore, it is not appropriate to take up the “comfort women issue” in the examination of the status of implementation of the Covenant.

36. On that basis, the Government of Japan recognizes that the comfort women issue was a grave affront to the honor and dignity of many women, and Japan has taken every opportunity to express its sincere apologies and remorse, including through the delivery of a letter from the Prime Minister to former comfort women and through the Chief Cabinet Secretary’s statement (1993).

37. Japan concluded the San Francisco Peace Treaty, bilateral peace treaties, agreements and instruments with the countries concerned, and in accordance with them carried out payment of reparations and other items in good faith. In this way, issues of claims concerning the war have been legally settled with the countries which are parties to these treaties, agreements and instruments. However, the Government of Japan determined that it was appropriate for Japan to express its sincere apologies and remorse to the former comfort women as the comfort women issue was a grave affront to the honor and dignity of many women. The Asian Women’s Fund (AWF) was established in 1995, and it implemented medical and welfare support projects for former comfort women with support of about 4.8 billion yen from the government and also provided support including the direct delivery of “atonement money” totaling approximately 600 million yen based on contributions from Japanese citizens. Facts on the comfort women issue and the activities of the AWF are specifically published on the AWF’s website (http://www.awf.or.jp). Some materials concerning the comfort women issue are also available for inspection on the website of the Japan Center for Asian Historical Records (http://www.jacar.go.jp).

38. The AWF was dissolved at the end of March 2007. However, the Government of Japan will continue to make maximal efforts to obtain understanding of the sincere sentiment of the Japanese people on this issue, which was represented by the activities of the AWF. The Government of Japan will thus continue to implement follow-up on the activities of the AWF.

Alternative information reported by JFOR
Ⅰ Retrospective Operation of Law and the Covenant
(Art.24 of the Covenant)

1. Article 15(2) of the International Covenant on Civil and Political Rights (ICCPR) has recognized that nothing in the article shall prejudice 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. Article 15(2) of the ICCPR expressly permits prosecutions in respect of war criminals who were guilty of committing atrocities during World WarⅡ. And the ICESCR(Art.24 ) has stated that nothing in the Covenant shall be interpreted as impairing the provisions which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant.

2. It cannot be over-emphasized that war crimes and crime against humanity can consequently be punished at any time after their commission and that there can be no statute of limitation to curb this right of an individual to require a State to prosecute and punish any such war criminals.

Ⅱ State responsibility and breach of an obligation of public international law concerning the Japanese military sexual slavery

3. In December 1991, the Government of Japan started a fact-finding study on the issue of “comfort women” and announced the result on August 4, 1993. The main points of the result are follows .

Ø “Comfort stations” were established and operated at the result of the Japanese military authorities of the day.
Ø The then Japanese military was, directly or indirectly, involved in the establishment and management of the “comfort stations” as well as the transfer of “comfort women.”
Ø The recruitment of “comfort women” was conducted mainly by private recruiters who acted at the request of the military. However, in many cases they were recruited against their own will, through such means as coaxing and coercion, and at times administrative/military personnel directly took part in the recruitment.

4. Japan can be held responsible for a breach of the International Convention for the Suppression of the Traffic in Women and Children of 1921, which it ratified in 1925. And at the beginning of 20th century it was generally accepted that customary international law prohibited the practice of slavery and that all nations were under a duty to prohibit the slave trade. Article 22(5) of the Covenant of the League of Nations required States administering a mandate to provide for the eventual emancipation of slaves, suppress the slave trade and prohibit forced labor .

5. The International Labor Organization similarly found that Japan had violated the prohibition of women as forced labor under the ILO 29 Forced Labor Convention. Japan is virtually the only country to argue that the prohibition of slavery was not customary international law before World War II, disregarding the fact that Japan had ratified ILO Convention 29 in 1932 .

6. Article 1 of the 1926 Slavery Convention sets out the following generally recognized definition of slavery was instituted.

“(1) Slavery is the status or condition of a person over whom any or all the powers attaching to the right of ownership are exercised. (2) The slave trade includes all acts involved in the capture, acquisition or disposal of a person with the intend to reduce him to slavery…, and in general, every act of trade or transport in slaves.”

7. Many women had been taken away from their families and villages the military acted as if it owned the women. Thus they treated them as slaves. In addition, the kidnapping and transportation of the women, which was condoned, authorized, or supervised by the Japanese military, was a form of slave trade. In that respect, Japan violated the prohibition of slavery which was already a constituent part of public international law. Thus violation gives rise to responsibility on the part of Japan .

Ⅲ　1965 Agreement with Republic of Korea (ROK) has not been settled issues of the claims made by or on behalf of individuals for the inhuman treatment

8. According to the ruling of Court, government of ROK decided to open all documents in its possession relating to the negotiations that preceded the adoption of the 1965 Agreement in February 2004. And a joint committee consisted of government and private sector of ROK stated that 1965 agreement had not settled any issues resulting from inhuman treatment committed by the Japanese military authorities such as the issue of “comfort women” in 26 August 2005 .

9. The Korean Constitutional Court, on 30 August 2011, by a 6 to 3 vote, held that the failure of the government to act on the issue of the comfort women was unconstitutional. The ruling emphasized the obligation to undertake dispute settlement procedures defined in Article 3 of the 1965 Agreement. Specifically, the ROK government was obligated to pursue settlement of the dispute over the right of the claimants, the wartime military comfort women, to file for damages against Japan. The issue is whether such rights had been terminated under Article 2 Paragraph 1 of the Agreement between the two countries .

10. Japan’s Ministry of Foreign Affairs (MOFA) responded to the demands made in September 2011 by the ROK’s Ministry of Foreign Affairs and Trade (MOFAT) by refusing to negotiate, invoking the “treaty defense”. MOFA insisted that all claims had been resolved by the 1965 Agreement .

11. In the view of the legal experts a dispute exists with respect to the word ‘claims’ under the 1965 Agreement. That Agreement contains a clause requiring the parties to negotiate and if negotiations do not succeed, to submit their dispute to arbitration. At present the negotiations appear to be deadlocked, bearing in mind the statement of the International Court of Justice that the issue of whether or not an international dispute exists is a matter for objective determination. The mere denial of the existence of dispute does not prove its non-existence (BELGIUM v. SENEGAL ICJ, 20 July 2012, para. 57). This suggests that the government of Japan should proceed to arbitration.

Ⅳ　A proposal by the Asian Women’s Fund (AWF) was rejected by the government of the Republic of Korea (ROK)

12. Victims and support groups in the ROK and Taiwan believed that the AWF was established by the Japanese government in an attempt to evade legal responsibilities, and refused the proposals that the AWF put forth in their entirely. The government of the ROK demanded that the government of Japan discontinue the activities of the AWF and pay each victim 4,300 Korean Won on the condition that the money not comes from the AWF .

13. Several resolutions were ratified across the world after the Asian Women’s Fund was dissolved in March 2007. The ratification of resolutions means that the support provided by the Fund was insufficient to either restore the dignity of the surviving victims or implement effective mechanisms to provide reparations.