Further to Grace O’
Malley’s “Go On” post
below, I will be attending the
World Conference on Japanese Military Sexual Slavery and speaking on a strategy panel during the legal conference on Saturday. A
perfect storm of legal doctrines, foreign policy objectives, treaty provisions waiving claims for reparations, failures of political will, and Japanese intransigence has left the “comfort women” with little in the way of legal options at this point. If we imagine a matrix of available legal mechanisms along several axes—international & domestic fora, civil & criminal claims,
state & individual defendants—every possible accountability configuration has been either unsuccessful to date or is entirely foreclosed.
The great
missed opportunity in this story of impunity and cover up was the failure of prosecutors before the
International Military Tribunal for the Far East (“the Tokyo Tribunal”— left) to include charges relating to the “comfort women” in their indictment of the major Japanese Imperialists. For many years, it was widely assumed that this omission was due to the fact that Japan had completely covered up the “comfort system” in the post-WWII period by ordering relevant documents to be destroyed and the women killed or hidden. It later came to light, however, that the Allies had sufficient information at the close of the war to serve as the basis for indictments. (The photo to the right is apparently an Allied soldier interviewing a "comfort woman" in Burma).
Whereas crimes of sexual violence were wholly absent from the Nuremberg judgment, at least at Tokyo the “rape of
Nanking” among other atrocities served as the basis for conviction of the major Japanese defendants. There were no facts presented at all about the “comfort system,” however. This is notwithstanding that slavery and the related crimes of forced labor and the
trafficking of women and children were outlawed in a number of multilateral treaties (e.g.,
ILO Convention
No. 29 of which Japan was a member). The crimes inherent to the “comfort system” were thus much better codified under international law than many other crimes against humanity prosecuted at Nuremberg and Tokyo.
In terms of civil claims against Japan itself, the states from whom the comfort women were forcibly abducted or fraudulently recruited could have espoused the claims of their female citizens and brought suit against Japan before the
International Court of Justice (below), which can entertain civil suits against states that have accepted its jurisdiction. Korea, which was the source of 80% of the victims, would have been an obvious Applicant. Korea, however, signed a
treaty with Japan in 1965 that included a waiver of any wartime claims that might be made by Korean nations in exchange for the payment of $800 million in grants, soft loans, etc. And, Japan’s acceptance of
ICJ jurisdiction was expressly prospective, so any claims would have been the more indirect and tricky claims related to the cover up and denial of justice.
In terms of domestic fora, the “comfort women” have tried to bring suit against Japan in United States and Japanese courts. In the United States, these claims were foreclosed through the operation of state immunity doctrines (the case was governed by the
Foreign Sovereign Immunities Act, which withholds state immunity in only narrow circumstances), the statute of limitations, and the prudential political question doctrine. In getting the cases dismissed on
foreign sovereignty and
political question grounds, Japan benefited from the assistance of its longtime ally the United States, whose government submitted
statements of interest urging the courts to dismiss the cases on the ground that the
1951 Treaty of Peace waived all reparations claims. Article 14(b) of that treaty reads:
Except as otherwise provided in the present treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of prosecution of the War.
Its position in the Japanese litigation is in stark contrast to the productive role the United States played in helping to settle scores of historical justice lawsuits filed in U.S. courts against German and Swiss defendants.
In terms of claims against responsible individuals, the only criminal prosecutions held to date were in the then-Dutch East Indies before a Dutch occupation court, which prosecuted Japanese soldiers for abuses against 35 Dutch women held as “comfort women.” Prosecutors did not include crimes committed against Asian women in these proceedings. Conceivably tort claims could have been brought in the United States against responsible individuals under the Alien Tort Statute (ATS) if personal jurisdiction could have been obtained against them here. The ATS carries a 10-year statute of limitation, however, which may serve to bar claims. Arguably, claims
should be tolled until at least the early 1990s when official documents about the “comfort system” first came to light and the Government of Japan finally began admitting its role in establishing and maintaining the system in piecemeal and contested apologies.
This legal impasse makes political efforts like House Resolution 121 so important. H.R. 121, sponsored by Representative Mike Honda (D-CA) (left), provides as follows:
That it is the sense of the House of Representatives that the Government of Japan
(1) should formally acknowledge, apologize, and accept historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces' coercion of young women into sexual slavery, known to the world as "comfort women”, during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s through the duration of World War II;
(2) would help to resolve recurring questions about the sincerity and status of prior statements if the Prime Minister of Japan were to make such an apology as a public statement in his official capacity;
(3) should clearly and publicly refute any claims that the sexual enslavement and trafficking of the “comfort women” for the Japanese Imperial Armed Forces never occurred; and
(4) should educate current and future generations about this horrible crime while following the recommendations of the international community with respect to the “comfort women.”
It remains to be seen whether this resolution, together with the results of this weekend’s conference, can spur the Government of Japan to heed the words of Japanese intellectual
Uchimura Kanzo (below), who wrote in 1897:
Repentance is humble acknowledgement of the supremacy of the Eternal Law of Justice, from which no man or nation—not even Japan—can be exempt. … The sooner we own our evils as evils the better.
(Posted by Beth Van Schaack, aka "Eleanor Roosevelt")
On this day in ...
day that Haupt's parents were not notified of their son's death -- for the reason that the parents and 4 other Chicagoans were in jail on suspicion of having helped their son. Also of note: the Library of Congress photo at right, of the "[k]ey figures in the trial of the eight saboteurs," includes at least 2 who'd go on to play key roles at the postwar trials of accused war criminals. They are: No. 2, Francis Biddle, then Attorney General of the United States and and later the American Judge on the International Military Tribunal at Nuremberg; and No. 1, Myron C. Cramer, then a Major General in the Army JAG Corps and assistant prosecutor in this trial, and later the American Judge on the International Military Tribunal for the Far East, which adjudicated the Tokyo Trial.
