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Joseph P. Nearey
Excerpted Wrom: WCONEUQZAAFXISHJEXXIMQZUIVOTQNQEMSFDU
in the New Millennium: Will Japan Compensate the "Comfort
Women" of World War II?, 15 Temple International and Comparative
Law Journal 121-145, 122-134 (Spring 2001) (239 Footnotes)
During the past decade, Japan has had to address the crimes of sexual
slavery it committed during the Second World War, but the country
continues to deny official liability for claims made against it by
former comfort women. Although history professor Yoshiaki Yoshimi found
documents in Defense Agency archives directly connecting the military to
the establishment of these brothels, the Japanese government refuses to
admit that it owes these women anything in an official capacity. In
1994, Prime Minister Murayama took a bold step and announced that his
country had to "squarely face" its aggression during World War
II, including its sexual enslavement of Asian women. Murayama claimed
that the government would spend $1 billion in the next ten years to
compensate victims, but the package did not contain any stipulations for
official compensation of comfort women.
Instead, the Japanese government subsequently established a $10
million private fund for comfort women, seemingly in an attempt to
distance itself from any claims of official liability. Politicians
opposed direct compensation because such "payments would bring a
flood of demands from others who were victimized before and during World
War II." The government's fund remains an insufficient redress to
these women. One of the primary goals of the women who are bringing
lawsuits against Japan is to make the government admit legal
responsibility for their acts domestically. As manifested by the recent
resolution passed by the U.N. Subcommission on Human Rights, the
international community is unwilling to allow Japan *123 to deny its
obligations, as well. One could argue that Japan, as a national
community, is unable to address the horrors it has inflicted on other
human beings in the past. This inability seems to be linked directly to
a national aversion to seek the truth or to "squarely face"
these crimes (as Prime Minister Murayama claimed his country would have
to do).
Also, this aversion seems to stem from Japan's consistent assertion
that the Japanese people were in fact victims of other aggressive
nations during the war. Unfortunately, the acrimony and volatility that
surrounds this issue is underscored by the numerous attempts to
bootstrap Japan's actions into some theory of legal responsibility
requiring compensation. Many are upset that Japan portrays itself as the
victim during the war, thus, many of Japan's victims are attempting to
seek any redress possible. Claimants seeking some sort of official
recognition of comfort women's rights are suggesting theories of
liability under any concept of customary international law that has even
the remotest application to the case in an attempt to obtain some form
of official remedy. In essence, claimants are scouring international and
domestic criminal and tort laws to find some way to force Japan to face
its past. So far, these attempts have failed.
Japan's national recalcitrance to admit to its human rights
violations is manifested in the absence of these crimes in Japanese
history textbooks. Many nations criticize Japan for this lack of
commitment to democratic ideals and accountability. Revising the
textbooks would be merely a first step towards reconciliation; however,
failure to disclosethe past could promulgate the recurrence of these
same human rights violations in the future. The widespread
"selective" editing of Japanese textbooks is merely a symptom
of a much greater problem within Japan's political and cultural life: a
pervasive disinclination to admit its government could be guilty of such
horrors. This unwillingness to be held accountable for its crimes may be
traced to two primary factors: 1) political pressures from constituents
who perpetrated these acts, or 2) the recognition that such reparations
would drain national economic resources or both. In addition, Japan
seems to fear the shame that any admission of guilt brings. This shame
has grown into a cultural aversion to addressing its past wrongs. The
Japanese government's recalcitrance likely could be traced to many other
sources as well, but the result *124 is the same; in the end, Japan will
deny that it owes these women any further obligations under
international law.
In order to determine whether or not the Japanese government is
legally liable under international law for the crimes it committed
during the World War II, it is necessary to explore the state of
international law prior to World War II and the extent to which Japan
adhered to international conventions. Japan could be held accountable if
it violated principles of customary international law that became
binding over time through repetition and adoption. Although these
principles of accountability are expressed in a statute designed after
World War II, the principles still reflect a basis in customary
international law that pre-dates the creation of the International Court
of Justice.
In their attempts to hold Japan liable for its crimes, some claimants
took the position that the Meiji Constitution insured human rights for
those who were Japanese citizens, and more specifically, that these
rights applied to Koreans who were subjected to Japanese rule after
Korea was annexed and made a Japanese colony in 1910. However, the
rights extended to Japanese citizens were of the most basic nature, such
as the freedom of religion and speech. Therefore, forced prostitution
would be difficult to fit within such enunciated rights. In using the
Meiji Constitution, one could make the argument that sexual enslavement
violated the provision that no subject could be arrested, detained,
tried or punished, unless according to law. However, it is important to
remember that one must be a Japanese citizen in order to enjoy these
rights. Even though Korean women were part of the Japanese colonies,
they were not considered full citizens or subjects of Japan. Expanding
this reasoning, it would be logical to conclude that women who were
captured in other occupied territories had none of these *125 basic
rights either.
Even if these rights had applied to some of the comfort women, they
would have lost these privileges in times of war or national emergency
if the Emperor felt it was necessary. These rights were effectively
forfeited when Emperor Hirohito enacted Imperial Ordinance No. 519,
which established legal grounds for recruiting comfort women. In
enacting such an ordinance, the Emperor gave an official government seal
to use comfort stations and comfort women. The fact that evidence exists
as to the Emperor's action, therefore, logically leads to the conclusion
that the Japanese government is liable for these crimes, since the
practice followed a government order. As some critics claim, Japan
effectively "industrialized" the practice of kidnapping women
for purposes of rape.
Further attempts to hold Japan accountable for its violations of
international law stem from Japan's adherence to international customs
and its signing of several international treaties and conventions
designed to protect basic human rights. Dating back to 1876, Japan
developed a long-standing policy of following international customs
where the provisions of its civil code did not provide a solution to a
particular problem. In other words, if Japan could not resolve the
question of whether the recruitment or coercion of comfort women into
service breached the women's basic human rights under Japanese law, then
the Japanese government should have looked to international standards of
conduct. Such standardized practices by the Japanese courts serve as an
important pretext for holding its government legally responsible for
violations of internationally recognized human rights laws.
The Meiji Constitution did not contain any express provision
addressing the relative force of treaties upon domestic law or whether
these treaties acquired domestic legal force. However, many critics
assert that the Great Court of Judicature, the highest Japanese court
under the Meiji Constitution, recognized the "domestic
validity" of customary international law in 1928. Moreover,
subsequent court decisions interpreting the Constitution of 1947 as
requiring international treaties entered into by Japan to function as
the *126 supreme law of the land further advance this reliance on
international law.
An example of an international treaty that Japan signed was the 1907
Hague Convention Respecting the Laws and Customs of War on Land (Hague
Convention). Japan was one of the signatories of the Hague Convention,
which was one of the most important international documents of the time
period because it codified the laws of war. Under the Hague Convention,
Article 46 states: "[f]amily honor and rights, the lives of
persons, and private property, as well as religious convictions and
practices must be respected." This provision of the Hague
Convention arguably is a precursor to subsequent human rights laws
because it also prohibits the torturing of both civilians and
combatants. In rebutting the argument that the institution of comfort
stations was against this Hague Convention, proponents for Japan argue
that rape was not addressed specifically under this provision. Many
critics find this argument to be a very thin one, and admit that
although it could be applied to instances of rape, in practice, it has
not been done. However, it is plausible to read the language regarding
protecting "family honor and rights" and "religious
convictions and practices," and the prohibition against torture as
references that are more than ample to encompass rape.
Japanese soldiers testified that many of the women were continuously
assaulted, raped, and at times, even murdered. Such actions clearly fall
under the protections afforded by the Article 46 provisions. Although
many critics would assert that international humanitarian law was not
codified clearly until the Geneva Convention, there remained a clause
within the Hague Convention that suggested that the stipulations in the
provisions were not exhaustive. This portion of the Convention, known as
"Marten's Clause," expanded the following idea:
Until a more complete code of laws of war has been issued . . . in
cases not included in the Regulations . . . the inhabitants and
belligerents remain under the protection and the rule of the principles
of the law of nations, as they result from the usages established among
civilized peoples, from the laws of humanity and the dictates of public
*127 conscience.
Obviously, one could argue that mass rape and forced sexual slavery
fell well outside "principles of law . . . established among
civilized peoples" derived from the "laws of humanity."
Furthermore, some assert that Article Three of the Fourth Hague
Convention, "recognizes that States have the obligation to pay
compensation for breaches of the laws and customs of war." More
specifically, Article Three states: "a belligerent party which
violates the provision of the said Regulations shall, if the case
demands, be liable to pay compensation." While it may be true that
a State must take action, one major stumbling block for the current
claimants, however, lies in the uncertainty of whether an individual may
make a claim under the covenant.
The Hague Convention gained legitimacy and weight when the
International Military Tribunal stated in its judgment that the
Convention's rules "were regarded as being declaratory of the laws
and customs of war." The International Military Tribunal for the
Far East (IMTFE) went even further, stating that the Hague Convention
was "good evidence of the customary law of nations to be considered
by the Tribunal . . . in determining the customary law to be applied in
any given situation." Thus, the Hague Convention was considered to
embody the ideals of international law regarding warfare. Thus, to some
extent, Japan could be held accountable for its actions under these
provisions. In fact, some argue that Japan essentially breached the
Hague Convention when Japanese military and civilian officials were
convicted of war crimes by IMTFE. However, the criminal prosecutions
failed to address the issue of civil damages for forced prostitution,
although such claims should still be valid today.
Interestingly, after the first World War, Japan was a member of a
commission created by the peace conference in Versailles that prepared a
list of punishable war crimes, including: "rape,"
"internment of civilians under inhuman conditions," and
"abduction of girls and women for the purpose of forced
prostitution." It seems that Japan expected others to avoid
participation in such crimes without holding itself to the same high
standards. Unfortunately, these violations were never codified as crimes
against humanity *128 under the treaty. However, the Versailles
Commission listed slavery, rape and torture as violations of peremptory
norms, thus, constituting warcrimes.
These preemptory norms, or rules of jus cogens, are the highest rules
of international law, which tend to overturn all contrary laws. In the
context of the comfort women's claims, almost every theory advanced
concerning Japan's legal responsibility is predicated on some form of
jus cogens rules. This argument is made because these norms reflect
international customary law; for example, slavery is considered to be
one of the first violations of jus cogens. Protection from slavery (and
in this case, sexual slavery) is said to be an obligation erga omnes
arising out of human rights law. In the context of war, war crimes and
crimes against humanity include rape and torture.
In the end, the Versailles Commission deemed these crimes to be
violations against the "laws of humanity," for which it holds
individuals criminally responsible. The terminology "violations of
the laws of humanity" may be the pre-cursor to "crimes against
humanity." In any event, it is clear from the Versailles
Commission's report that customary international law considered these
acts as crimes when it listed them as violation against preemptory
norms. It is also clear that Japan was bound to recognize customary
international law, even though Japan did not sign any treaty in
conjunction with this report. The great irony, however, is that Japan
was one of the fifteen members of the Versailles Commission that took
part in preparing the list of punishable war crimes to include rape,
enforced prostitution, and forced labor of civilians as punishable war
crimes.
Also, the Versailles Commission recommended the creation of an
international criminal tribunal to try "offenses against the laws
and customs of war or the laws of humanity." One could argue that
the Japanese government had advance notice that it could be prosecuted
for violations against humanity under international law because it was
an active member of the Versailles Commission. Repeated Allied warnings
to Axis leaders during World War II of prosecution and punishment for
criminals carrying out such *129 acts supports this contention that
Japan had such knowledge. Furthermore, the Allies agreed to establish an
international court to bring war criminals to a "just and swift
punishment." The grave nature of these war crimes and the
seriousness with which the Allies hoped to pursue perpetrators were
underscored in the Moscow Declaration when it stated: "most
assuredly the three Allied Powers will pursue [the perpetrators] to the
uttermost ends of the earth and will deliver them to their accusers in
order that justice be done."
The undeniable fact that Japan was on notice of its perpetrating
transgressions against jus cogens norms pre-empts any of Japan's claims
that such crimes against humanity were not codified under the Versailles
Treaty. Karen Parker, an American attorney, argued that the comfort
women litigants should use the jus cogens legal basis because it has a
number of advantages: (1) a treaty violative of jus cogens is void; (2)
reliance on domestic law as a reason to violate jus cogens principles
fails; (3) the statute of limitations is inapplicable to such claims;
and, (4) financial or procedural difficulties cannot be entertained as a
means to obviate liability for a jus cogens violation. Therefore,
reliance on a jus cogens argument provides the litigants with the
ability to charge Japan with violations of preconceived human rights
that are found to be inextricably intertwined with customary
international law. In other words, Japan knew it was committing severe
crimes and cannot escape retribution.
Furthermore, some commentators describe preemptory norms as mandatory
rules that do not allow courts to decline judicial review. This premise
states that judicial review of international customary norms "are
ipso jure a legal, not a political question," and judicial review
continues to be appropriate, even in instances concerning national
security issues or war. If this theory was applied against Japan, it
would be clear that Emperor Hirohito's decrees concerning forced labor
and prostitution would not be immune from judicial review merely because
they dealt with issues of national security.
Since Japan's responsibility to comfort women arises under customary
international law as well as treaties and conventions, it would be
instructive to explore further the state of human rights law during the
pre-World War II era. One international convention to which Japan is
bound is the International *130 Convention for the Suppression of the
Traffic in Women and Children of 1921-1922 (Suppression Convention) that
Japan ratified in 1925. Aside from condemning the trafficking of women
and children, the Suppression Convention required the signatory states
to prevent future trafficking of women and children. Unfortunately,
under Article 14 of the Suppression Convention, colonial powers could
exclude their colonies from the provisions that prohibited further
trafficking in women and children. Japan took full advantage of this
power in its dealings with Korea. After its invasion of the Korean
peninsula, Japan decreed Korea a colony and began trafficking Korean
women.
Although the Japanese government has a strong case with regards to
its ability to traffic in women in Korea under a technical reading of
the Suppression Convention, one could argue that Japan's interpretation
went against the spirit of the article. The fundamental purpose of the
article was "to eradicate such traffic gradually," not to
"foster the future creation of a traffic in women." Instead,
Japan created "colonial safe harbors" where women were forced
into sexual slavery, which is perverse in its very nature. Furthermore,
Japan's signature on the Suppression Convention served as a formal
acknowledgment that forced prostitution and slavery constituted as
crimes. Japan's accession to this Suppression Convention demonstrated
that it recognized that these acts were punishable international crimes
because it knew that the goal of the Suppression Convention was to
prosecute those engaged in prohibited crimes. Thus, victims may
underscore the fact that Japan already viewed sexual slavery as a human
rights violation, and that it subsequently violated those ideals to
which it purported to subscribe.
This assertion finds support in an international doctrine from the
Vienna Convention on the Law of Treaties, which is considered to be the
authoritative document covering international treaty law. Although this
treaty was enacted decades after the Suppression Convention, the spirit
of the document underscores customary international laws. The Vienna
Convention *131 allows States to opt out of particular sections of the
treaties they sign. However, the Vienna Convention specifically states
that no reservation may be "incompatible with the object and
purpose of the treaty." Japan's fostering of a new wave in the
trafficking of women could be described as a violation of these
customary principles. Furthermore, Japan clearly disrespected the object
and purpose of the Suppression Convention by violating the basic human
rights ideals the Vienna Convention was created to ensure. It is also
interesting to note that the draft version of the Vienna Convention used
the word "current" before the reference to violations. With
the removal of the term "current," some scholars believed that
the abuses by the Japanese government clearly were within the scope of
the text. The removal of the term creates the impression that future
violations will be covered by the Vienna Convention as well.
In addition, although Japan can be said to have followed the
technical reading of the Suppression Convention in regards to
trafficking women from Korea because of its status as a colony, it has
no defense for forcing women from the Philippines into comfort stations.
The abduction of these Filipino women is a clear violation of the
Convention, for Japan cannot claim that the Philippines was one of its
colonies, and therefore, excludable under the Suppression Convention.
The initial agreement that prompted the Suppression Convention was
the 1904 International Agreement for the Suppression of the "White
Slave Traffic." This agreement made the "procuring of women or
girls for immoral purposes abroad' an international crime. Many see the
Suppression Convention as confirming and extending the provisions of the
Suppression Agreement. Conjunctively, these agreements seem to protect
all women on an international level, regardless of what origin they
happen to *132 be. Some scholars make the argument that Korean women may
have a completely different claim for holding Japan liable under the
Suppression Convention, which involves a technical reading. The argument
points to the fact that the exception, which allows the exclusion of
colonies from the Suppression Convention, applies to the geographic
boundaries of Korea and not to Koreans as persons. Therefore, once the
women were forced to leave geographical boundaries of Korea for comfort
stations located throughout Japan's holdings in Southeast Asia, their
rights were violated. Although it seems crude to refer to these women as
property that cannot or should not be removed from a certain boundary,
the argument may still provide some form of redress.
The Declaration Relative to the Universal Abolition of the Slave
Trade (1815 Declaration) and the 1926 Slavery Convention emphasized
further the inhumanity of various forms of slavery in customary
international law. The 1815 Declaration provided the foundation in
international law for condemning slavery and provides the framework for
future anti-slavery treaties. Subsequently, the 1926 Slavery Convention
defined slavery as "the status or condition of a person over whom
any or all of the powers attaching to the right of ownership are
exercised." This definition clearly applies to the type of control
the Japanese had over the comfort women; that is, the Japanese's feeling
of ownership over mere property is manifested by it referral to the
women as "ammunition" and "public toilets" in their
official correspondence. These gruesome depictions of the sex slaves
demonstrate that the Japanese viewed these women as sub-human
individuals without any rights whatsoever. Although Japan never ratified
the 1926 Slavery Convention, it may have been bound by it because
anti-slavery customs had acquired the force of law before World War II.
This assertion has a great deal of validity given the amount of
anti-slave trade provisions and treaties that have been promulgated.
Beginning with the 1815 Declaration and continuing through the 1904
Suppression Agreement, the 1921-1922 Suppression Convention, and the
1926 Slavery Convention, the international community has demonstrated
that forced prostitution and sexual slavery violate international
customs. Here, the notion of jus cogens*133 rule takes an important role
in holding Japan accountable for its actions because it may be a very
advantageous means of attack. In essence, one must look at the
overwhelming snowball effects of the various international agreements
that embodied international customary laws in the pre- World War II
atmosphere. Given all of these provisions together, as well as Japan's
adherence to the Suppression Convention, one may validly argue that the
outlaw of slavery in any form had the force of law before World War II.
Thus, the argument that peremptory norms existed in customary
international law that outlawed Japan's use of sex slaves functions as a
consolidating foundation through which claimants can make allegations
concerning Japan's legal responsibility.
Another treaty upon which liability can be based is the International
Labour Organization Convention Concerning Forced or Compulsory Labour,
which Japan ratified in 1932. Although the Convention does not outlaw
all forced labor, it does provide limitations for the use of such labor.
The Convention defines forced labor as "all work or service which
is exacted from any person under the menace of a penalty and for which
the person has not offered himself voluntarily." The Convention
states that forced labor may only be required of "adult able-bodied
males" at the same wages as voluntary labor and for no more than
sixty days. Obviously, these women did not offer themselves voluntarily
at all; they were coerced into forced sexual slavery by the Japanese.
The violation of the Forced Labour Convention went well beyond simple
"forced labor"; instead, it attained the position of a crime
against humanity. Unfortunately, the Convention did not contemplate
civil remedies, and therefore the comfort women would not be able to win
compensation for a claim by relying on this treaty. Instead, Article 25
of the Convention asked all signatories to implement domestic criminal
statutes to fulfill enforcement.
Unfortunately, Japan chose not to enact any criminal statutes in
conjunction *134 with the Forced Labour Convention. Therefore, it would
be difficult to argue that any criminal liability attached to these
actions. Finally, Japan could argue that Article 2(d) of the Forced
Labour Convention excluded Japan's actions during the war, because it
exempted from the definition of forced labor "any work or service
exacted in cases of emergency, that is to say, war or calamity."
Such an argument would have little merit, however, because this forced
labor was not necessary to sustain the Japanese war effort.
Additionally, the policy was instituted as early as 1932, long before
the break out of a full- scaled war. |
