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Tina Dolgopol[*]
The Women's International War Crimes Tribunal for the Trial of Japanese Military Sexual Slavery (the Tribunal) was the culmination of efforts by a dedicated group of non-government organisations, survivors of military sexual slavery and individuals to focus the world's attention once again on the situation of the Comfort Women[1] and on Japan's failure to make any meaningful response to the violations of the laws of war and the commission of crimes against humanity committed by its armed forces during the Second World War. The Tribunal was notable not only because of its subject matter but because it is one of the few times a group of non-western, regionally based non-government organisations predominantly headed by women were able to gain the attention of the international community and the world's media on an issue of importance to them.
The Tribunal was held from 8 to 10 December 2000 in Tokyo. The final judgment of the Tribunal was delivered in The Hague during December 2001.[2] The following article explores the significance of the judgment to the development of international law.
It has been 13 years since the first Korean Comfort Woman, Kim Hak Sun,[3] spoke out about her experiences. Since then, groups throughout the Asia-Pacific region have come together to support the Comfort Women in their effort to have history reflect their experiences of war and to try to obtain reparations from the Japanese government. The concept of reparations includes the payment of compensation, providing restitution and taking the alleviating measures required by satisfaction (such as making an apology and creating memorials).[4] Of particular importance to the Comfort Women has been the issuance of an appropriate apology and the payment of compensation by the government.
Throughout the 1990s there were numerous public meetings in Tokyo, Seoul and Manila where women told their stories and international observers called on the government to make adequate reparations. Organisations formed to assist the Comfort Women and to lobby on their behalf undertook an international lobbying campaign and also convinced some national governments to provide assistance and support to the Comfort Women.[5] These efforts led to public awareness of the issue as well as support from the international community.[6] There have been repeated calls on Japan to pay compensation and to offer a full and frank apology. Thus far Japan has evaded its responsibilities, arguing any obligation it has to pay compensation is a moral rather than a legal obligation. In keeping with this view the government helped to establish the Asian Women's Fund as a vehicle for receipt of private donations. This fund has not been considered acceptable by the Comfort Women as a full and final payment of compensation. They believe payments should be made from government funds as it was the military and government of Japan that put in place the Comfort System.[7] Various government officials have made vague statements expressing remorse, but none of these are considered to be a true expression of regret, as they do not acknowledge the extent of Japan's responsibility.[8]
Inspired by the negotiations taking place for the creation of the International Criminal Court, a number of organisations working on this issue decided that one way the historical record could be made to reflect more accurately the lives of the Comfort Women and the responsibility of the Japanese government, was to hold a tribunal organised by civil society.[9] The three organisations whose tireless efforts ensured the success of the Tribunal were: The Korean Council for Women drafted into Military Sexual Slavery,[10] ASCENT [11] and VAW-Net Japan.[12] They contacted other individuals and groups throughout the region to ensure that representatives from each country where women's lives had been so profoundly devastated would participate in the Tribunal. In addition the three organising bodies sought and received advice from the members of the global women's community.
Groups were formed in each of the participating countries[13] to work on the gathering of evidence and the development of a legal framework for the Tribunal. The evidence-gathering efforts of each of the country-based groups were assisted by researchers in Japan who worked to find documentary evidence that would relate specific military and government officials to the establishment of the Comfort Stations and the forcible taking of women from each of the 'victimised' countries.
Discussions were held with the survivors throughout the preparatory phase. It became apparent that they wanted the Tribunal to focus, in part, on the criminal responsibility of government and military officials for what had happened to them. It is a continuing source of regret to the women that no official has ever been brought to trial for the crimes committed against them. Although recognising that the judgment of the Tribunal would not be enforceable in the sense that none of the named defendants would be punished if found guilty of an offence, the women felt strongly that a public finding of criminal responsibility on the part of Japanese officials would assist in helping them to find peace within themselves. The emphasis given to the needs of the survivors by the organisers of the Tribunal made this effort more akin to the processes put in place by truth commissions.[14]
During a meeting of the Chief and Country Prosecutors it was decided to combine the trying of a criminal indictment with a claim for reparations. The idea of marrying these two processes came from the procedures put in place for the International Criminal Court whereby victims of war crimes and crimes against humanity may bring a claim for reparations. [15] The prosecutors also decided to have the criminal indictment focus on crimes against humanity. The underlying reason for this had to do with the pre-war status of Korea and Taiwan. Each of these countries were treated by Japan and by the Allies as a colony of Japan. War crimes are committed against residents of an opposing state whereas crimes against humanity can be charged even when the acts are 'committed against a civilian population of the perpetrator state or against stateless persons'.[16] Often there is no difference in the terminology used to describe a crime against humanity in comparison to a war crime. Torture, murder, enslavement, rape and enforced prostitution were considered to be both war crimes and crimes against humanity by the close of the First World War.[17] An essential distinction between the two crimes is the threshold requirements: a war crime can be charged for each and every act that falls within the crime's definition but a crime against humanity can only be charged if the acts were 'widespread' or 'systematic'.[18] This threshold requirement was easily met in the case of the Comfort System.
Another crucial decision of the prosecutors was to frame the indictment so that the specific charges would be addressed as if this were a continuation of the International Military Tribunal for the Far East (IMTFE). The significance of this decision was that the law applicable to the criminal aspects of the Tribunal would be that as applied or that which could have been applied if the Comfort System had been adjudicated by the IMTFE. It also meant that the legal basis for the Tribunal's decision could not be attacked as being based on modem concepts of international law inapplicable at the time the comfort system was implemented.[19] Further utilising the law as applied at the IMTFE would allow the Tribunal to focus on principles of law accepted by Japan when it signed the San Francisco Peace Treaty.[20]
With respect to the application for reparations, the prosecutors decided to focus on both the violations of international treaty and customary law committed by Japan during the war as well as the continuing violations it has committed by failing to make adequate reparations. By highlighting Japan's ongoing violations, the prosecutors enabled the judges to make use of developments in the field of state responsibility, in particular the International Law Commission's Draft Articles on State Responsibility.[21]
The proceedings of the Tribunal[22]
The judges of the Tribunal[23] sat from 8 to 10 December 2000. More than 75 survivors were present during the proceedings. Although some of the survivors took the witness stand to give their evidence, many of the personal testimonies were given by video in order to avoid having the women recount the horrific details of the events they had had to endure before an audience of approximately 1500 people. Those whose evidence was received through videotapes were present at the Tribunal and swore an oath affirming the truth of the statements made in the video.
The Tribunal also took evidence from a number of expert witnesses. Their evidence covered issues such as the organisation of the Japanese military; the content of documents concerning the Comfort System found in government archives; the structure of the Japanese government during the war, including the powers exercised by the Emperor; the incidence and effect of trauma on victims of mass rape; and the applicable rules of international law applying at the close of World War II. Two former Japanese soldiers agreed to come forward to tell of their involvement in and experiences of the Comfort System.[24] In addition, the country prosecution teams as well as the Co-Chief Prosecutors introduced several hundred pages of documentary evidence.
The Japanese government was invited to attend and to participate in the Tribunal's proceedings. No response was made to this invitation. The judges decided that they would appoint amicus curiae to allow the possible legal arguments that could be made against the findings of the Tribunal to be aired.
The factual findings of the Tribunal recount the stories of a number of the women who testified, describing the horrors of the treatment they had to endure. As a number of accounts of these events have been published previously, they will not be summarised here.[25] However, one of the concluding observations made by the judges of the Tribunal does require mentioning both because it is an aspect of this saga that can too easily be forgotten and because it relates to the conditions that continue to influence the trafficking of women and children at present. At paragraphs 261 and 262 the judges state:
261. The Japanese military preyed on the most vulnerable members of society for its sexual slavery system -those who because of age, poverty, class, family status, education, nationality, or ethnicity were most susceptible to being deceived and otherwise trapped into slavery ... 262. Many, if not most, 'comfort women' came from poor, rural households where the girls had to go to work at an early age to provide support to their families. Some ofthe witnesses testified that at the time they were enslaved, although they were still just girls, they had already been working outside the home. Already living a difficult life, they were among the most underprivileged people in their own society.
Crucial to the court's ultimate findings and conclusions, particularly with respect to reparations, was the testimony of survivors and several of the expert witnesses concerning the long-term effect of being trapped in the Comfort System. With respect to the issue of 'continuing harm' the judges considered the evidence under the following headings: physical suffering; reproductive harm; psychological harm; harm to intimate relations and social/community life; silence; and poverty and social and economic hardship. Extracts from the Tribunal's summary of this evidence are set out below:
1. Enduring Physical Suffering 396. Wan Ai-hua testified that she suffers pain from being tortured for punishment after being recaptured after escape including being hung from a tree by her arms. Kim Young Suk testified that she has aches in her legs from broken bones where the soldiers kicked her ...
398. Two survivors mentioned digestive problems caused by torture. Kim Young Suk suffers from digestive problems as a result of being cut in her stomach area with a sword, and Kim Bok Dong suffers from having water forced down her throat with a hose.
400. Chun Ok Soon lost her ability to speak as a result of tattoos that were imprinted on her tongue; she also lost one eye as a result of violence. 2. Reproductive Harm 404. The rate of infection with sexually transmitted diseases was high in the 'comfort stations.' Two Indonesian survivors, Ms Titih and Ms Sukarlin, suffered from untreated syphilis until their advanced age. Medical records from a small group study at In-chun S-rang Hospital in (South] Korea show five survivors suffering from late latent syphilis.
405.... Six survivors testified that they were unable to bear children ... Ms X and Ms Suhanah testified that they had had their uteruses removed due to infection as a result of sexual violence. Park Young Sim testified that a doctor in the POW camp removed her womb after she had a miscarriage and Chong Sun Myong and Le San Gyung lost their wombs as a result of torture.
3. Ongoing Psychological Harm 412. Survivors also experienced nervous breakdowns and addictions due to the trauma they suffered. Park Young Sim testified that she suffered a nervous breakdown. Song Shin Do and Teng Kao Pao Chu both testified that they had drinking problems. Teng Kao Pao Chu stated that she was able to quit drinking only when it was necessary to win the respect of her children. A study at In-chun Sa-rang Hospital showed that a large number of former 'comfort women' smoked and had smoking-related illnesses due to the stress. Some became addicted to painkillers. 4. Harm to Intimate Relationships and Social/Community Life 424. Many witnesses testified that, while although they eventually married, their marriages ended in abuse and divorce. Lin Shen-Chung (lyang-Apay) stated, 'Of the history of my four marriages and three divorces, my husband's difficulty to accept my past usually is the main reason for my divorces.' Her first husband divorced her when he learned the truth; at the time she was three months pregnant. Her second husband took their three children and left her when he learned of her past. Her fourth husband had known of her past before the marriage, but found fault with her later and tried to extort money from her to obtain a divorce. Only her third husband, who died in 1971, was kind to her.
438. Several survivors of sexual slavery testified that they lost the ability to take pleasure in sexual relations. As Jan Ruff-O'Herne stated, 'How can you enjoy lovemaking, even by your husband, if you are reminded of all the hundreds of times you were forcibly raped by the Japanese?' She stated that she felt fortunate that her husband [was] very patient. Ms Mardiyem and Ms S testified that they had no pleasure in sexual relations with their husbands ... 5. Silence 443.... [F]or others ... their family members were unable to handle the truth. Both the family members and the women themselves suffered from this. Jan Ruff-O'Herne testified that she only spoke with her mother once about what she had suffered as a 'comfort women,' and that because her mother could not cope with what she heard, she never spoke about it again. Kim Bok Dong testified that at first she told her mother only that she had been a nurse, and that her mother had a heart attack when she finally told her mother the truth in response to her mother's urging for her to marry. Florencia Macapagal de Ia Pena testified that when he heard that she had been raped, her father became very angry and disappeared because he could not control himself. 6. Poverty and Social/Economic hardship 446. Other witnesses testified that they earned their living performing domestic labor or working in other occupations in which they had a marginal social status. Song Shin Do testified that she did kitchen work for a Korean-Japanese man who owned a restaurant, after she had been left alone in Japan. Kim Gunja testified that she worked as a peddler and servant. ...
The testimony of two Korean experts, Lee, Sooyun[26] and Kee, Chulwon,[27] confirmed the medical and psychological effects the comfort system had on the women. Two other experts testified about the connection between social justice and recovery for survivors. Lepa Mladjenovic, 'a psychologist and expert on sexual violence against women in armed conflict'[28] noted that 'social justice [was] an important part of recovery for survivors of sexual violence in armed conflict ... [T]rauma is not the private matter of a woman, but a political issue. When the state takes responsibility for the sexual violence, it can contribute to the survivor's recovery, and conversely, when it refuses to take responsibility for the crimes, it can impede the survivor's recovery'.[29] Young-Hee Shim from the Department of Sociology at Hanyang University spoke of'power of truth of the women's stories to restore collective memory and compel the rewriting of history. She also note[d] that for many survivors discussing their stories solved some of the pains of their trauma.' [30]
The judgment contains an overview of the development of the concept of crimes against humanity and the pre-Nuremberg and Tokyo precedents for considering rape as a crime against humanity. It also analyses the handling of sexual crimes by both the Nuremberg and Tokyo Tribunals. Given the limitations of space it is not possible to summarise in full this portion of judgement. However, as noted above, one aspect of the judgment that may influence the future casework of the International Criminal Court is its section on sexual slavery and therefore the following paragraphs focus on the discussion of this issue.
Persuaded that the term 'enforced prostitution'[31] did not capture the essence of the women's experience and the nature of the crime they endured, the judges drew on established principles of international law with respect to the prohibitions against slavery and forced labour, as well as those pertaining to the trafficking of women and children, and came to the conclusion that 'this crime was unquestionably encompassed by the accepted understanding of slavery, rape and forced labour prevailing during the Second World War'.[32]
The judge's decision to direct their attention to this issue was based on their belief that to understand the true nature of the Comfort System one had to comprehend its connection to slavery. Early in their discussion of this question they stated: 'Slavery is the antithesis of freedom. As a basic tenet of the rule of law, freedom cannot be relinquished.'[33] This observation, although seemingly obvious, is at the heart of all efforts to control the trafficking of women and children. Without freedom all other rights are compromised, such as 'the right to protect, control and determine the disposition of one's body and self in relation, for example, to work, sexuality, and reproduction; to practice one's religion or spirituality, to express one's opinions, to form intimate relationships of one's choice and to decide whether to have a family ... and to have social security and the economic, social and cultural support necessary to have dignity and the full and free development of one's potential.'[34]
Included in this section of the judgment is a description of the international norms prohibiting slavery including the 1926 Convention Against Slavery, the concept of forced labour, including the International Labor Organizations Convention prohibiting forced labor, the Fourth Hague Convention of 1907 as well as the Annexes to the Hague Conventions (these are relevant to prohibitions during war on both slave labour and rape), various conventions prohibiting the trafficking of women and children and the development of the crime of enforced prostitution. The Tribunal's purpose in canvassing this material was not to highlight each and every violation of these norms but rather to give support to the idea that a crime against humanity of sexual slavery existed even if not given this nomenclature at the time the IMTFE made its decision.
Having come to the conclusion that such a crime existed, the judges defined its essential elements as follows:
618. We find that the actus reus of the crime of sexual slavery is the exercise of any or all of the powers attaching to the right of ownership over a person by exercising sexual control over a person or depriving a person of sexual autonomy. Thus we consider that control over a persons' sexuality or sexual autonomy may in and ofitself constitute a power attaching to the right of ownership. The mens rea is the intentional exercise of such powers.[35] [footnotes omitted]
In keeping with the educative effect of such a judgment, the Tribunal also offers a sound critique of the indicia of slavery and sexual slavery agreed to at the Preparatory Commission for the Elements of Crime Annex to the Statute of the International Criminal Court.[36] The Preparatory Commission used what many international lawyers consider to be an excessively narrow definition of slavery and this was then incorporated into the elements of sexual slavery. The relevant text adopted by the Preparatory Commission reads as follows:
1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons or by imposing on them a similar deprivation of liberty. 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.[37]
By contrast, the approach adopted by the International Criminal Tribunal for Yugoslavia (ICTY) in the Kunarac judgment is more nuanced in its view of the concept of enslavement, in particular in its approach to the actions that would come within that part of the 1926 Slavery Convention's phrase: 'the powers attaching to the right of ownership.' The pertinent part of the Kunarac decision reads as follows:
[I]ndications of enslavement include elements of control and ownership; the restriction or control of an individual's autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator. The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or captivity, psychological oppression or socio-economic conditions. Further indications of enslavement include exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking. With respect to forced or compulsory labour or service, not all labour or service by civilians in armed conflicts, is prohibited-strict conditions are, however, set for such labour or service. The 'acquisition' or 'disposal' of someone for monetary or other compensation is not a requirement for enslavement. Doing so however, is a prime example of the exercise of the right of ownership over someone. The duration of the suspected exercise of powers attaching to the right of ownership is another factor [whose] importance will depend on the existence of other indications of enslavement.
[The basic factors include] the control of someone's movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.[38] [footnotes omitted]
In comparing the Elements of Crimes to the Kunarac judgment it becomes obvious that the essential difference is that the latter focuses on the status or condition of the person being enslaved whereas the former directs its attention to the use of the person in a commercial exchange. This difference would be crucial to victims. For them the essence of being enslaved is the loss of control over their bodies. Slavery is an affront to human dignity precisely because it denies a person
one of the essential elements of personhood, autonomy. To focus on the gain of the perpetrator is to overlook the very nature of the crime. As noted above, it is to be hoped that the prosecutors and judges of the International Criminal Court will exercise their discretion with respect to the application of this particular article of the Elements of Crimes and will look to general principles of international law when considering the acts that fall within sexual slavery.
The application for reparations from Japan was made in the name of the Peoples of the Asia-Pacific Region. This was done purposefully given that the usual framework for cases before the International Court of Justice is for claims to be brought by one state against another. The title was designed to highlight the status of the Tribunal as a people's Tribunal and demonstrate the commitment of civil society throughout the region to work for justice for the Comfort Women.
It is a basic premise of international law that a state is responsible for any internationally wrongful act attributable to the state. Violations of international law can include treaty law or customary norms of international law. When a violation has occurred, a state is responsible to undertake appropriate remedial measures. These can include the payment of compensation, restitution of property, the making of an apology. In the usual course of events if it were not possible for someone to seek redress through the legal system of the offending state they would ask for diplomatic assistance from the country whose nationality they held or the country in which they were normally resident. If such efforts failed then a case would be brought before the International Court of Justice by the assisting country, assuming both states were parties to the Court's Statute.
In recent years the International Law Commission (ILC) has had to grapple with the issue of wrongs committed against non-state victims and whether international law has developed to the point that a victim can look for assistance beyond the borders of their own state. The ILC has recommended that whenever a wrong is committed against a non-state victim any party to the collective obligation (treaty or customary norm) should be able to push for the acceptance of responsibility by the offending state either through diplomatic channels or the ICJ.[39]
The approach of the ILC highlights the difficulty that individuals may have in seeking an effective remedy when a state's violations of its international obligations has had a direct effect on their person or property. It is for this reason that the judges of the Tribunal decided to address the issue of reparations and the connection between reparations and the ending of impunity for mass violations of human rights. The evidence before the Tribunal as well as that in the public domain made clear that Japan had breached a range of its treaty and customary obligations. Implicit in its continued failure to accept responsibility for these breaches, is the suggestion that there should not be any consequences for a state whose governmental apparatus condones, authorises and encourages the commission of mass violations of human rights. This course of behaviour by Japan undermines the international community's efforts to uphold and enforce human rights.
In its discussion of state responsibility the Tribunal focuses on the concept of a continuing wrong. As international law has evolved, the idea has developed that the failure to take rectifying action is itself a separate wrong and that the amount of compensation to be paid and the form of restitution that may be appropriate should take account of the ongoing and repeated nature of the violations.[40] The right to an effective remedy is now enshrined in both the UN Declaration of Human Rights and the International Covenant on Civil and Political Rights. For many who have suffered mass violations of human rights a vital part of an effective remedy is finding out about the events that led to those violations and who was responsible for them. The literature on transitional justice has increasingly focused on the right of both victims and society to know the truth of what happened during periods of mass violations of human rights.[41] The Special Rapporteur of the UN Subcommission on the Prevention of Discrimination on the right to restitution, compensation and rehabilitation observed that it was incumbent on states to make available all material in their possession concerning human rights violations.[42]
A major concern of the survivors, non-government organisations and individuals is Japan's failure to produce a full and frank account of the comfort system. Surviving documents[43] associated with this period have continued to be concealed by the government. During the proceedings of the Tribunal, Professor Yoshimi, an expert on the Comfort System and the person whose tenacious and successful search for documents forced the government to admit that the Japanese military had been involved in the establishment and maintenance of the Comfort System,[44] testified that 'many documents remain secret, namely, "police records, documents of the Department of Overseas Affairs and Home Ministry relating to the colonies, the huge collection of diaries of officials and personnel accompanying the military held by the Defence Agency, materials relating to the war crimes trials held by the Justice Ministry and the Foreign Ministry, and Welfare Ministry documents relating to demobilization and support"' (footnotes omitted).[45]
The evidence before the Tribunal also caused the judges to express their grave concern about the unexplained failure of the government to apologise directly to the Comfort Women. Statements of remorse have been made to the governments of The Philippines, the Republic of Korea and the Democratic People's Republic of Korea. They have also been repeated before various UN bodies, but no letters of apology have been sent to the women nor has the Japanese government ever made any attempt to have government officials meet personally with the women in their home countries. Even the statements of remorse that have been made are of questionable value. None of the statements admit that the acts of Japanese government or military officials are criminal offences. Further each of the statements made by the government has used an expression in Japanese that does not connote a serious sense of wrongdoing.[46] The governments of North and South Korea as well as China have noted the linguistic issues and have indicated their dissatisfaction with Japan's choice of language.[47]
The Japanese government's failure to apologise in an adequate fashion has been exacerbated by its unwillingness to take action against government Ministers who have made derogatory comments about the women in recent years.[48]
The final section of the judgment contains a series of recommendations, most of which are directed to the government of Japan.[49] They include:
1. Acknowledge fully its responsibility and liability for the establishment of the 'Comfort System', and that this system was in violation of international law.
2. Issue a full and frank apology, taking legal responsibility and giving guarantees of non-repetition.
3. Compensate the victims and survivors and those entitled to recover as a result of the violations declared herein through the government and in amounts adequate to redress the harm and deter its future occurrence.
5. Consider, in consultation with the survivors the establishment of a Truth and Reconciliation Commissiothat will create an historical record of the gender based crimes committed during the war, transition, and occupation.
8. Support training in the relation between the military slave system and gender inequality and the prerequisites for realizing gender equality and respect of the equality of all the peoples of the region.'[50]
The holding of the Tribunal and the judgment that emanated from it have made two equally important but distinct contributions to international law. The rigorous legal analysis contained in the judgment has the potential to influence the manner in which the International Criminal Court will approach issues such as reparations and the definition of sexual slavery. The effort of international civil society in organising and bringing to fruition the Tribunal poses a challenge to the international community with respect to the adequacy of its response to the needs and rights of victims and survivors following mass violations of the laws of war.
With regard to the future work of the International Criminal Court and the Victims Trust Fund[51] the judgment offers a perceptive analysis of the concept of continuing harm and provides an insight into the issues that must be taken into account when decisions are being made about the award of reparations or the provision of services. The judges of the Tribunal have set out in detail the devastating effect that being held within the 'Comfort System' had on women throughout the Asia-Pacific region. Too often in the past, awards of reparations have treated the crimes experienced by survivors as distinct and isolated events rather than events that will affect the survivors or the victims' relatives for years to come. The judgment has highlighted the necessity to consider the survivor's specific long-term needs. This may encourage the Victims Trust Fund to think carefully and creatively about the types of services that should be supported and nurtured. It should also persuade the Fund to assist research partnerships between non-government organisations and academics that focus on the efficacy of particular services and the manner in which the long-term needs of survivors can be addressed.
As noted in the discussion on sexual slavery, the Judgment adopts and develops the concept of sexual slavery in accordance with the ideas emerging from the ICTY and demonstrates that the international legal community does not adhere to the narrow definition given to the term slavery in the Elements of Crimes annex to the Statute for the International Criminal Court. This should encourage the newly appointed prosecutor to give a broader definition to this crime when considering the charges to be filed against potential defendants. Hopefully the judges of the International Criminal Court will consider the approach of the ICTY and the Tribunal when an appropriate case comes before them.
Turning to the broader significance of the Tribunal it presents a demand to the international community that it tum its mind to a heretofore unasked but important question: what should the international community be doing to acknowledge the suffering of those who either have been victims of or who have survived war crimes and crimes against humanity in cases where the perpetrators of those crimes will never be brought to trial? The inevitable limitation of resources will mean that not all crimes within the jurisdiction of the International Criminal Court will in fact be brought to trial. Many countries lack the resources to conduct either trials or truth commissions. The evidence placed before the Tribunal demonstrated that the years of silence that surrounded the issue of the 'Comfort System' left the women affected by that system wondering about their own value as human beings. They had to live with the physical and psychological damage inflicted on them whilst knowing that no one had ever been held accountable for what had happened to them. Whatever dignity has now been restored cannot take away from the years of shame, fear and regret that they have had to endure alone.
We cannot assume that the Comfort Women will be the last group of survivors to feel this way. This then leads to two fundamental questions. What obligation does the international community have to those who do not have access to any mechanism that will provide them with 'justice'? And, if we continue to do nothing are we complicit in the continuing harm that will be experienced by the survivors?
Perhaps it is time to look beyond official state and international organs for the means of achieving justice, particularly in the documentation of events and the acknowledgement of victims and survivors. It may be that the Tribunal's significance will be the message it sends to others that something can be done by ordinary people to encourage the healing process of victims and to create a lasting historical record of a previously overlooked piece of history. The evidence gathered for this Tribunal will eventually be digitised and one set of the documents will be housed in a women's museum in 'Tokyo.[52] This will allow scholars and other interested individuals to study, not only the Comfort System, but also the birth and work of an international movement for the furtherance of women's rights.
Non-government organisations are composed of ordinary people who come together to pursue a particular cause. Unlike governments they do not seek power for themselves. Their efforts are directed to the wellbeing of the victims and survivors.[53] Because of this their work is more likely to involve the empowerment of the people they work with. The empowerment of the Comfort Women has been a consistent theme of the organisations working with them. As their cause received international attention they were encouraged to understand how their courage in coming forward had ensured that history would remember their stories. The inner strength of the women has allowed them to make their voices heard in many fora throughout the world. It is largely through the efforts of the Comfort Women and the organisations working with them that sexual slavery was included as both a war crime and a crime against humanity in the Statute for the International Criminal Court.
The Tribunal is a powerful testament to the fact that the voices of those clamouring for justice cannot be silenced.
[*] Tina Dolgopol teaches law at Flinders University of South
Australia.
© 2003 Tina Dolgopol
[1] Despite its negative connotations this article will continue to use the term Comfort Women as the survivors themselves have decided to use the term because of the notoriety it has gained since the 1990s.
[2] Preliminary findings were issued on 12 December 2000. These addressed the responsibility of Emperor Hirohito for the crimes committed against the Comfort Women.
[3] Judgment of The Women's International War Crimes Tribunal2000 for the Trial of Japanese Military Sexual Slavery delivered in The Hague, December 2001 at para 949 ('Judgment'). A copy of the Judgment is in the possession of the author.
[4] For a thorough analysis of the concept of reparations, see Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final Report, submitted by Mr Theo van Boven, Special Rapporteur of the UN Subcommission on the Prevention of Discrimination, UN Doc. E/CN/4/Sub.2/1993/8 (2 July 1993) and The Right to Restitution Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final Report of Mr M. Cherif Bassiouni, Special Rapporteur of the UN Commission on Human Rights, UN Doc.E/CH.4/2000/62 (18 January 2000).
[5] Most notable of these has been the health and financial benefits put in place by the government of the Republic of Korea (South Korea).
[6] Non-government organisations have reported on the issue, see e.g., U Dolgopol and S Paranjape, Comfort Women- An Unfinished Ordeal (International Commission of Jurists 1994) and two UN Special Rapporteurs have undertaken investigative missions to Japan and elsewhere in the region, see, 'An Analysis of the Legal Liability of the Government of Japan for 'Comfort Women Stations' Established during the Second World War', Appendix to the Final Report on Systematic Rape, Sexual Slavery, and Slavery-like Practices during Armed Conflict, submitted by Gay J McDougall, Special Rapporteur, UN Doc. E/CN.4/ Sub.2/1998/13 and Report on the Mission to the Democratic People's Republic of Korea, the Republic of Korea and Japan on the issue of military sexual slavery in wartime, Addendum to the Report of the Special Rapporteur on violence against women, its causes and consequences, Ms Radhika Coomaraswamy, UN Doc. E/CN.4/1996/53, Add. 1, 4 (January 1996).
[7] The Judgment uses the phrase 'Comfort System' in order to highlight the effort and planning undertaken by Japanese military and government officials to set up a network of military brothels known as 'Comfort Stations'. The first 'Comfort Station' was established in China during 1932. Paragraphs 145-372 of the judgment trace the history of the military's use and involvement in the creation, maintenance and regulation of the 'Comfort Stations' as well as the participation of government officials in territories under Japan's colonial or military occupation in the forceful or deceitful taking of women and girls for the purpose of being put into the 'Comfort Stations'.
[8] See Judgment at paras 973-88 and the discussion of this issue below in the section on 'State Responsibility'.
[9] There have been previous 'peoples tribunals' the most famous of which was the Russell Tribunal that examined the atrocities committed by US soldiers in Vietnam.
[10] Based in South Korea; the principal representative to the steering committee for the Tribunal was Professor Yun Sun Ok.
[11] A women's human rights organisation based in the Philippines; the principal representative to the steering committee was Indai Sajor.
[12] Headquartered in Tokyo but with support networks throughout Japan; the principal representative to the steering committee was Yayori Matsui
[13] China, East Timor, Indonesia, Malaysia, The Netherlands, North Korea, South Korea and the Philippines.
[14] As Martha Minow has observed, the atmosphere ofa truth commission where witnesses are encouraged to tell their stories in a non-threatening environment is probably more conducive to the healing of victims than a criminal trial. SeeM Minnow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (1998).
[15] Article 75 of the Statute for the International Criminal Court.
[16] Judgment, para 516.
[17] Following World War I the Commission on Responsibilities of the Paris Peace Commission of 1919 drew up a list of war crimes. That list included the crimes of rape and enforced prostitution. By 1941 the Allied Nations were discussing the possibility of holding war crimes trials at the close of the Second World War (declarations to this effect committed by Germany and Japan were reported in the media) and they used the Peace Commission list when instructing their armed forces about possible charges and the evidence they would need to collect. See U. Dolgopol, 'Rape as a War Crime-Mythology and History,' in I. Sajor (ed) Common Grounds (ASCENT Manila 1998).
[18] Judgment, para 530. The other threshold requirements for crimes against humanity are discussed in paras 528 and 529.
[19] A slightly different approach is taken with respect to the crime of sexual slavery. As explained below this crime is based on crimes such as enslavement and enforced prostitution recognised at the time the IMTFE took place, but it was not given that nomenclature. The judges of the Tribunal adopted tht:; phrase sexual slavery rather than enforced prostitution because of the women's concern that use of the phrase 'prostitution' in any sense would re-open the shame they have felt about what happened to them.
[20] UN Treaty Series, vol36 at 47 as cited in U Dolgopol and S Paranjape, above, n 6. See also Judgment, para 510. In addition to outlining the rules applicable at the close of the war the judgment includes an excellent summary of recent developments in international law. These are used to demonstrate how the principles developed during the Nuremberg and Tokyo tribunals have been refined and enhanced by the International Tribunals for Yugoslavia and Rwanda. Recent matenals are also cited by the Tribunal when considering specific issues that did not arise at either Nuremberg or Tokyo.
[21] UN Doc. A/CN.4/L.602, adopted by the Drafting Committee on second reading (25 May 2001) as cited in the Judgment at para 894.
[22] The description of the proceedings is based on paras 40-43 of the Judgment as well as the author's observations.
[23] Gabrielle Kirk McDonald (Presiding Judge, formerly Presiding Judge at the Tribunal for the former Yugoslavia), Carmen Arguibay (Argentinean Judge and Ad Hoc Judge at the Tribunal for the Former Yugoslavia), Christine Chinkin (Prof ssor of La, London School of Economics) and Willy Mutunga (Chau, Human R1ghts CommiSSion of Kenya, a non-government organisation). In keeping with the view that this was an event of major international significance and that the proceedings had to be and had to be seen to be condu tein a manner that came as close as possible to approximating a judicial hearing, leadings jurists and international scholars were approached to sit as judges. They were guaranteed their independence.. The Judgment issued by the Tribunal is the intellectual work of the JUdges and theu assistants and their determinations on matters of evidence and legal argument arc theirs alone.
[24] Some of the Japanese experts and the former soldiers reportedly received threatening messages and telephone calls during the Tribunal.
[25] See eg, G Hicks, The Comfort Women: The Sex Slaves of the Imperial Japanese Forces (1995) and U Dolgopol and S Paranjape, above, n 6.
[26] Medical Sociology Department of Seoul National University.
[27] Director, Imam Counselling Center.
[28] Judgment, para 451.
[29] Judgment, 453.
[30] Judgment, para 461.
[31] Enforced prostitution was listed as a war crime following the close of World War I. See U Dolgopol, above, n 17.
[32] Judgment, para 612.
[33] Judgment, para 583.
[34] Judgment, para 583.
[35] The judges note that their view about the constitutive elements of the crime is supported by the JUdgment in Prosecutor v Dragoljub Kunarac Roadmir Kovac and Zoran Vukovic, Judgment, IT-96-23-T & IT-96:223/IT (22 February 200I) (a judgment of a Trial Chamber of the ICTY). See Judgment at paras 621-627 for a discussion of this judgment.
[36] Report of the Preparatory Commission for the International Criminal Court, Addendum Part II: Finalised draft text of the Elements of Crimes, PCNICC/200/Add.2. Noting that the limited definition adopted in the Annex would in fact cover the acts in this case, the judges were concerned that 'legitimate cases of enslavement and sexual slavery' could be excluded from the International. Criminal Court's consideration if the narrow definition of these crimes was adopted by the Prosecutor and the court itself. The judges noted that the Elements Annex is not binding on the International Criminal Court and that the enunciation of the crime in the Statue is broader than the definition given to it in the Annex. See para 630 of the Judgment.
[37] As cited in Judgment at footnote 478.
[38] Kunarac Trial Chamber Judgment, paras 542 and 543, as Cited in Judgment above, n 35, at para 622.
[39] See Judgment, para 877 for the text of the ILC recommendation.
[40] The concept of an ongoing violation has two prongs. The first is the toleration of a violation by a government that changes the nature of the government's responsibility. This is the type of ongoing violation referred to by The International Court of Justice in the Iran case. (United States Diplomatic and Consular Staff in Teheran Case (United States v Iran) 1980 ICJ Rep 3, as cited in M Dixon and R McCorquodale, Cases and Materials on International Law (1991) 407-8. The second is where a government refuses to cease violating its international obligations. This issue was discussed in the Namibia case where the ICJ noted that international responsibilities arise from continuing violations. (Namibia Case 1971 ICJ Rep 16 as quoted in Dixon and McCorquodale at 401.)
[41] See eg, Martha Minow, above, n 14.
[42] Judgment, para 942.
[43] Many of the documents relating to Japan's war strategy and the conduct of the war were destroyed as the war came to a close in line with government directives. See paras 937-40 of the Judgment describing the expert and documentary evidence submitted to the Tribunal with respect to this issue.
[44] A report on Professor Yoshimi's efforts was published in the Asahi Simbun (a leading Japanese daily newspaper) in January 1992. Some of the documents from his initial discoveries are described in the Dolgopol and Paranjape, above n 6 at 40-3. A more complete collection of the documentary material uncovered by Profession Yoshimi can be found in Yoshimi Yoshiak Comfort Women: Sexual Slavery in the Japanese Military During World War II (Suzanne O'Brien trans, 2000).
[45] Judgment at para 943. Other expert witnesses, namely Professors Yamada and Yoshida, supported Professor Yoshimi's testimony.
[46] The distinction between 'owabi' and 'shazai' is described in Judgment at paras 973-4. The former is the word used by the government and the latter is the term experts believe should be used.
[47] Judgment, para 974.
[48] These comments are described in paras 987-8 of the Judgment.
[49] Others are directed at the former Allied nations and the remainder are directed to the United Nations.
[50] The full text of the recommendations is contained in paragraphs 1053-55 of the Judgment. Some of the recommendations are directed at the former Allied nations as well as the United Nations. Many women's groups in the Asia-Pacific region have argued that rape and sexual slavery are an outgrowth of the underlying inequality of women. If women continue to be treated as inferior and as objects in society during peacetime then it is inevitable that their position will deteriorate during war. They also note that the militarisation of any society or region has negative consequences for respect for the human dignity of women.
[51] The Victims Trust Fund was created by the Court to receive voluntary donations to augment the funds available for both individual reparations and the provision of services to those affected by war crimes and crimes against humanity. The website for the Victims Trust Fund is: <http://w,ww.victimstrustfund.org/> .
[52] One of the main organisers of the Tribunal, Yayori Matsui, died in December 2002. In her will she has devoted her estate to the establishment of such a museum.
[53] M Ballengee, 'Comment: The Critical Role of Non-governmental Organisations in Transitional Justice, A Case Study of Guatemala' [1999-2000] 4 UCLA J. Int'l and For Aff. 477 at 479.
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