A CALL FOR JUSTICE: VICTIMS OF JAPAN’S ‘COMFORT SYSTEM’

DURING THE WORLD WAR II

Atty. Shaun Cary Akot, LL.B., LL.M.

INTRODUCTION

Narcissa Claveria was born in Abra, a province in the northern tip of

the island of Luzon in the Philippines. She was abducted from home at age
14, after witnessing her father’s and brothers’ torturous death in the hands
of the Japanese soldiers. She was only one of the approximately 200,000
women from the Asian countries of Borneo, Indonesia, Japan, Korea,
Malaysia, the Philippines, Singapore who were coerced, imprisoned and
enslaved by the Japanese in brothels called ‘comfort stations’. These women
were treated no more than military supplies, classified under the supply list
as ‘ammunition’, and forced into slavery for the sexual gratification of
Japanese soldiers between 1931 and 1945 during the World War II.

Claveria remembers being raped by sometimes 70 soldiers a day. She

was made to cook, clean and then beaten if she refused sexual intercourse.
She kept her silence for 50 years after the world war. Today at 89, she still
fights for justice in behalf of all the women who were held in sexual bondage
by the Japanese Imperial Army.

Historians account that only less than thirty percent of the women
survived. Many of them failed to last the unbearable conditions of the
comfort stations, but some were murdered and abandoned in desolate
places.

The women who survived still anguished from physical and emotional
trauma from the torments of their experience. This also resulted to nervous
breakdowns, sleepless nights, and other health related problems- such as
sexually transmitted diseases and infertility. Due to the shame, these
women refused to be married, have children and lived lonely lives.

Although it had made efforts to compensate the victims for the

suffering they have undergone, Japan appears to have only acknowledged a
moral responsibility, thereby continuing to deny its legal duties under
international law. Worst, victims of the time have yet to hear an official
apology from the new regime of Japanese government in the sincerest sense.

SCOPE OF THE STUDY

The primary question now is: has Japan already satisfied its legal
obligations to the victims of the ‘comfort system’?
 In this essay, my audience will be able to have a grasp of Japan’s
political and legal position in relation to its responsibilities and obligations
under the international law on human rights.

The first part will give a background about the ‘comfort system’,
explaining why and how, and the justifications for its establishment. This
section will also reveal the lawsuits that were put forward to make Japan
pay for the actions of the imperial army.

The next part will identify the treaties and conventions that protect
human rights- which Japan was bound to comply. Even if it said that Japan
would not be a signatory in all of these treaties and conventions, a
discussion on the ‘jus cogens’ status of the prevention of enslavement and
rape will give teeth to victim’s claims for reparations and the need for an
official apology.

Finally, the last part will be a discussion about reparations to the

victims. I will minutely touch on issues that make it difficult for a state to
fulfil its international obligations. However, this section will emphasise on
the need for compensation; an official acknowledgment from the new regime
of Japanese government that there were indeed violations of human rights
during the World War II from the establishment of the comfort system; a
creation of a truth commission; and the need to revise history books in order
for this episode to be forever remembered by the whole world.

DISCUSSION

The Comfort System

Japan has justified the ‘comfort system’ to have been established: (i)
so that the Japanese soldiers would confine rape and sexual abuse cases in
the comfort stations, which then would prevent the recurrence of atrocities
in the ‘Rape of Nanking’;1 (ii) to prevent the spread of venereal disease (as
Japanese doctors distributed condoms and examined the women on a
regular basis)2; (iii) to help elevate the army’s morale, as the soldiers were
more physically and mentally healthy upon being sexually satisfied. 3

It is important to note that at the beginning of World War II, Japan

wanted to build an empire in the Asia Pacific Region when it invaded Taiwan
and Korea. When it reached mainland Asia, it conquered the City of

1 Carmen M. Argibay, Sexual Slavery and the Comfort Women of World War II, Berkeley Journal of International
Law, Vol 21 Issue 2, 2003, 377.
2 Christine Wawrynek, World War II Comfort Women: Japan’s Sex Slaves or Hired Prostitutes?, N.Y.L. Sch. J.
Hum. Rts, Vol 19, 2003, 914.
3 Ibid.
Nanking.4 There, the Japanese soldiers committed widespread rape of
women and young girls- which became known as ‘The Rape of Nanking’.
Consequently, the international press made reports of the incidents. 5

As Emperor Hirohito heard the news, he became aware of the negative

impression that the Imperial Army will leave in the international
community.6 It is for this reason that the Emperor’s aids proposed the idea
of a ‘comfort system’.7 Thus, the Emperor issued Imperial Ordinance No.
519, establishing stations to be used as brothels, to be regulated by the
military, and which will control sexual activities of soldiers within the
established stations.8

The Lawsuits

Victims of the comfort system lacked voice to initiate complaints

before the courts until 50 years later. Perhaps, this behaviour could be
traced to the shame and ostracism that had attached to them in being
identified as ‘comfort women’. For them to be viewed as ‘prostitutes’ by the
world would be too much to handle.

The world’s attention was stirred right back to the issue when
Professor Yoshiaki Yoshimi uncovered a document relating to the
establishment of the comfort system in his book entitled Comfort Women.9
The memorandum with the heading “Matters Concerning the Recruitment of
Women to Work in Military Comfort Stations” addressed the problems faced
by unsupervised recruiters of ‘comfort women’, saying that: “You are hereby
notified of the order (of the Minister of War) to carry out this task with the
utmost regard for preserving the honor of the army and for avoiding social
problems”.10

This revelation gave the victims the confidence to file their complaints.
One of these lawsuits was filed in the United States entitled ‘Hwang Geum
Joo v Japan’. However, this was dismissed by a United States District Court
for lack of jurisdiction, reasoning that the comfort system was held to be an
act of the Japanese Military thereby making it a sovereign act and not
commercial in nature, to which Japan has not waived its immunity from
suit.11

In 12 December 2000, the Tokyo People’s Tribunal headed by U.S.

Judge Gabrielle Kirk McDonald- former president of the International

4 Argibay, above n 1, 376.

5 Ibid.
6 Ibid.
7 Ibid.
8 Jamie S. Jeffords, Will Japan Face Its Past? The Struggle For Justice For Former Comfort Women, Regent J.
Int’l. L., Vol 2, 2003, 149.
9 Argibay, above n 1, 377.
10 Ibid.
11 Wawrynek, above n 2, 918.
Crimes Tribunal of Yugoslavia, was established.12 The tribunal adjudged
Emperor Hirohito to be guilty of slavery and rape. 13 Unfortunately, the
emperor could not serve any sentence as he was already dead, and the
Japanese government was itself unwilling to admit the magnitude of the
crimes committed.14

Subsequent thereto, in 4 December 2001, the Women’s International War

Crimes Tribunal of Japan’s Military Sexual Slavery (Women’s Tribunal)
rendered a decision in the Hague, with recommendations for the government
of Japan to do as follows:

(i) Acknowledge its legal liability in creating the comfort stations;

(ii) To make an official apology and promise not to repeat the same;
(iii) To compensate the women who became victims of the system;
(iv) To create a truth commission or an investigative body;
(v) To build libraries and museums honouring the ‘comfort women’;
(vi) To revise history books and include incidents of the comfort system
which transpired;
(vii) To repatriate the survivors if there are any;
(viii) To produce pertinent documents;
(ix) To punish the perpetrators principally involved in the crimes;
(x) To bring back the remains of the deceased to their families.15

Sadly, the role of the Women’s Tribunal in rendering this decision was
merely to make recommendations to the United Nations Commission on
Human Rights and UN members, and nothing else.16

II

International Treaties and

Conventions Violated

It cannot be denied that Japan had violated its international

responsibilities and obligations. In 1907, Japan became a signatory to the
Hague Convention Respecting the Laws and Customs of War on Land
(Hague Convention). 17 Article 46 of the Hague Convention reads: “family
honor and rights, the lives of persons, and private property, as well as
religious convictions and practices must be respected”. By enslaving and
raping the women in the comfort stations, the Japanese soldiers failed in
respecting family honor and rights. They have mocked and ridiculed the
very essence of ‘respect’ in the lives of these women- victims of the comfort
system. Article 46 do not even have to specifically underscore the
importance of preserving human rights. Nonetheless, the Hague Convention
12 Ibid.
13Ibid.
14 Ibid.
15 Ibid.
16 Ibid.
17 Joseph Nearey, Seeking Reparations in the New Millenium: Will Japan Compensate the “Comfort Women”
of World War II?, Temple Intl & Comp. L. J., Vol 15, 2001, 126.
contained a clause which upholds the laws of humanity- known as ‘Marten’s
Clause’, which states thus:

“Until a more complete code of laws 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 conscience.”18

Ironically, Japan was a member of the Commission on the

Responsibility of the Author of the War and on Enforcement of Penalties
(Versailles Commission), that makes ‘rape’, and the ‘abduction of girls and
women’ as punishable war crimes.19 Japan may not have been a signatory to
the Versailles Commission report20 listing such crimes to be against
customary international law. However, its membership in the Versailles
Commission is telling enough of its national policy of adhering to
international laws and customs.

Further, Japan was also a member of the International Convention for

the Suppression of the Traffic in Women and Children (Suppression
Convention), and a signatory to the International Labor Organization
Convention No. 29 on Forced or Compulsory Labor.21

Condemnation of Rape and Slavery

Attained Jus Cogens Status

As mentioned above, Japan had always adhered to international

customs- which gives reason to hold it liable for the crimes committed
during the World War II. As early as 1876, Japan had supplemented its legal
system with rules stemming out of international customs to what its civil
provisions could not provide.22 In this regard, there can be no excuse for
Japan not to respect and hold itself liable for breaches of international laws
and customs, especially during wartime.

With every international treaty and convention condemning rape and

slavery, it becomes evident that these concepts have attained jus cogens
status. This means that such condemnations have become part of the rules
of the highest order in international law that they can in no way be
derogated. A German Federal Constitutional Court once enunciated that:
‘the quality of such peremptory norms (jus cogens) may be attributed only to
such legal rules as are firmly rooted in the legal conviction of the community
of nations and are indispensable to the existence of the law of nations as an

18 Hague Convention Respecting the Laws and Customs of War on Land.

19 Nearay, above n 17, 127.
20 Ibid.
21 Jeffords, above n 8, 153.
22 Nearay, above n 17, 125.
international legal order and the observance of which can be required by all
members of the international community.’23

Moreover, it must be emphasised that once an international norm

attains jus cogens status, it binds all states and becomes absolute
regardless of being objected to or not. 24 In the context of Japan’s comfort
system, it can be asserted that its government has violated jus cogens,
notwithstanding any objection it may raise (for example: exceptions to rules
against slavery or forced labour during wartime or national emergency). To
illustrate, Article 14 of the Suppression Convention allows the exclusion of
colonies from the application of its rules on trafficking, which Japan utilised
in fostering trafficking of young girls and women in Korea. 25

It cannot be overemphasized however that the condemnations against

rape and slavery under jus cogens should prevail over any treaty or
convention that might be in conflict with it. This contention is in
consonance with articles 1 (3), 56 and 103 of the United Nations Charter,
when read altogether means that all member states are obligated to
contribute to the promotion and respect for fundamental freedoms and
human rights without any form of discrimination. 26 Again, this obligation on
the part of member states, and Japan for that matter, should come ahead of
a treaty or convention that contravenes it in any way.

III

Japan’s Full Accountability

According to the Japanese government, it has already fully satisfied

its obligations to the victims of the World War II after signing the 1951
Treaty of Peace, also called as the San Francisco Treaty. 27 With respect to
claims from Korea, Japan is of the opinion that it has settled its obligations
on the basis of its execution of the Agreement on the Settlement of Problems
Concerning Property and Claims and on Economic Cooperation (Settlement
of Claims Agreement).28 Whatever the nature of these agreements be, they
can only be regarded as contracts between states on economic cooperation,
that would not impact on individual claims of the victims of the comfort
system at all.29

23 Judgment of 7 April 1965, Bundesverfassungsgericht, BVerfGE, W. Ger., as quoted by Karen Parker, Jus
Cogens: Compelling the Law of Human Rights, Hastings Int’l and Comparative Law Review, Vol 12, 1988-1989,
416.
24 Ibid, 418.
25 Nearay, above n 17, 130.
26 Hidayat Ur Rehman, Syed Raza Shah Gilani & Muhammad Haroon Khan, A Critical Assessment of Jus Cogens
Nature of International Human Rights Law, Dialogue (Pakistan), Vol 9 Issue 4, 31 December 2015, 406.
27 Nearay, above n 17, 138.
28 Ibid.
29 Ibid.
 Responding to the pressure from the international community, Japan
started setting up the Asian Women’s Fund (AWF) to “address contemporary
issues regarding the honor and dignity of women”. 30 The AWF although
benevolent, was established on a non-governmental level, which received
funds from the private sector. 31 This was criticised to be a mere façade
because not even a small percentage of it comes from government funds,
thereby allowing the Japanese government to continuously circumvent its
legal obligations. To stress the matter, the crimes were perpetrated by the
Japanese Imperial Army, and not by private individuals. It is only but
appropriate that any victim compensation be taken out of the public coffers.
Evidently, there is no sincere admission of legal liability on the part of the
Japanese government.

To be fully accountable for the war crimes committed, i.e. slavery and
rape of women and children- each and every individual responsible must be
put into trial and the appropriate punishment be imposed. 32 Three
categories of barriers to full accountability for crimes and human rights
violations in the international sphere, can be identified as follows: (i) political
constraints which can be based on the need to continue living with, or
sharing powers with the perpetrator population of constituency; (ii) limited
resources to prosecute each and every perpetrator; (iii) there is lack of will
power on the part of the government to pursue perpetrators.33

In the case of Japan’s ability to respond to its legal accountabilities, it

can be said that there is an obvious political recalcitrance due to the need to
continue living with, or sharing powers with the perpetrator population- as
the high ranking officials of the government are themselves the perpetrators;
there can be no enough resources to put in trial every member of the
Imperial Army that participated in the war crimes; and again an obvious
avoidance by the government in prosecuting the criminals manifested by a
more than 50 year delay of an official apology.

Compensation Is Not Enough

In Order That Justice Be Served Best

Assuming for the sake of argument that Japan has paid its legal
obligations to the victims of the comfort system through the establishment
of the AWF, there are also other demands to be considered. Among these
demands are: (i) an official apology from the Japanese government; (ii)
revision of the history books to include an account of the comfort system;
and (iii) an establishment of a truth commission or investigative body.

Has Japan made a step forward in order to comply with these

demands?

30 Chunghee Sarah Soh, Human Rights and the “Comfort Women”, Peace Review 12:1, 19 August 2000, 124.
31 Wawrynek, above n 2, 920.
32 Madeline H. Morris, International Guidelines Against Impunity: Facilitating Accountability, Law and
Contemporary Problems, Vol 59 N0 4, Fall 1996, 29.
33 Ibid, 30.
 Sometime in April 1998, a decision was rendered by a Yamaguchi
Prefectural Court which was known to be the ‘Kampu Case’, wherein three
Korean women were awarded with monetary damages- but which
unfortunately dismissed a demand for an official apology from the
government.34 To reiterate, this is a reflection of the Japanese government’s
inability to take responsibility for the human rights violations in the comfort
stations.

Moreover, there has been no effort with respect to the demand for a
revision of history books- to include an account of the comfort system.
Nobukatsu Fujioka, a conservative leader of the Society for New History
Textbooks has adamantly advocated for the exclusion of these details in
school books.35 According to him, these women were nothing but hired
prostitutes and the inclusion of the issue in books would only deceive the
people.36

Finally, with respect to the demand on establishing a truth

commission or investigative body, no mention has been made about the
creation of these bodies to date. It only continues to be a demand and a
recommendation- as done in the Women’s Tribunal. In any case, it is rather
important that a truth commission be established. A truth commission can
afford an integrated and comprehensive account of what cannot be gathered
from piecemeal records of a trial.37In addition, a truth commission shall at
most times be a credible authority should there be insufficiency in the
account of a private historian.38

CONCLUSION

The totality of circumstances would lead to a conclusion that there

has been no real fulfilment of Japan’s legal obligations to the victims of the
comfort system during the Word War II. First, the AWF was only privately
funded, which mirrors Japan’s resistance in acknowledging its hand in the
human rights violations of the World War II. Second, Japan still has to issue
an official apology that recognizes the realities of the comfort system in the
sincerest possible way. Third, Japan continues to bypass the call for an
inclusion of the issue of the comfort system in its history books. And lastly,
its failure to establish a truth commission belies its claim of having settled
its obligations to the victims of the comfort system and to the whole world.

With these facts on hand, the international community should not

stop in pushing Japan to account for its legal liabilities. Any success on this
matter will leave its mark- and then the whole of humanity will not to forget
that this episode during World War II had always been a part of our history.

34 Nearay, above n 17, 141.

35 Wawrynek, above n 2, 920.
36 Ibid.
37 Morris, above n 32, 33.
38 Ibid.
 BIBLIOGRAPHY

1. Carmen M. Argibay, Sexual Slavery and the Comfort Women of World

War II, Berkeley Journal of International Law, Vol 21 Issue 2, 2003.
2. Christine Wawrynek, World War II Comfort Women: Japan’s Sex
Slaves or Hired Prostitutes?, N.Y.L. Sch. J. Hum. Rts, Vol 19, 2003,
914.
3. Jamie S. Jeffords, Will Japan Face Its Past? The Struggle For Justice
For Former Comfort Women, Regent J. Int’l. L., Vol 2, 2003.
4. Joseph Nearey, Seeking Reparations in the New Millenium: Will Japan
Compensate the “Comfort Women” of World War II?, Temple Intl &
Comp. L. J., Vol 15, 2001.
5. Karen Parker, Jus Cogens: Compelling the Law of Human Rights,
Hastings Int’l and Comparative Law Review, Vol 12, 1988-1989.
6. Hidayat Ur Rehman, Syed Raza Shah Gilani & Muhammad Haroon
Khan, A Critical Assessment of Jus Cogens Nature of International
Human Rights Law, Dialogue (Pakistan), Vol 9 Issue 4, 31 December
2015.
7. Chunghee Sarah Soh, Human Rights and the “Comfort Women”,
Peace Review 12:1, 19 August 2000.
8. Madeline H. Morris, International Guidelines Against Impunity:
Facilitating Accountability, Law and Contemporary Problems, Vol 59
N0 4, Fall 1996.