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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.