Law supports comfort women's fight against injustice

Law supports comfort women's fight against injustice

By Myint Zan

BURWOOD, Victoria, Australia (JP): A recent news item
indicated that former Filipino "comfort women" have lodged a
lawsuit in a Japanese court to obtain monetary damages from the
government of Japan.

The comfort women are seeking compensation from the Japanese
government for the actions of its soldiers which had used them as
"sex slaves" during the Japanese occupation of the Philippines in
World War II.

The sexual enslavement of comfort women took place more than
fifty years ago and it was only recently that they have come
forth and narrated their harrowing experiences.

Not being privy to or in any way involved with the case which
apparently is now in Japanese courts, the writer is unaware of
the details of the actual legal proceedings.

However, from the standpoint of a student of international
law, the case of the comfort women raises interesting legal
issues.

One of the substantive issues that could be considered is what
international laws did the Japanese soldiers breach during World
War II in forcing Filipino women to be their sex slaves.

Concomitant to this issue is what other contemporary
developments in international human rights law should be taken
into consideration in the case of the comfort women against Japan
for compensation for their traumatic experiences.

At the end of World War II, the Tokyo tribunals which tried
major Japanese wartime leaders ruled that they had breached,
among others, laws and customs of war regarding treatment of
prisoners, non-combatants and the civilian population.

During its deliberations, the Tokyo tribunals concluded that
the 1929 Geneva Convention on humanitarian laws were customary
international laws which bound wartime Japan.

Was sexual enslavement of the women of the local population by
the forces of the occupying power prohibited under the 1929
Geneva Convention?

Even if sexual enslavement as such was not specifically
prohibited by the "letter" of the conventional and customary
international laws at that time, this writer submits that the
actions of the Japanese soldiers in sexually enslaving Filipino
comfort women violated the "spirit" of those laws.

International human rights law has greatly expanded both
substantively and procedurally since the end of World War II. For
example, the statute of the international tribunal to try serious
violations of humanitarian laws in the territory of the former
Yugoslavia states that "systematic rape" can constitute a "crime
against humanity".

A Japanese court considering the analogous situation of the
Filipino comfort women is by no means bound by a statute which
was enacted to try much more recent abominable crimes that were
committed in a different era and in another continent.

But it should take judicial notice of recent international
developments which affirm and consolidate the international legal
principle that the sexual degradation of women in times of
conflict and war is a grave breach of international humanitarian
law.

Do the Filipino comfort women have a "standing" in
international law against the current government of Japan for the
actions its soldiers had committed more than fifty years ago?

In the Nuremberg and Tokyo trials, individuals were found to
be guilty of violations of international law. In attributing
responsibility and punishment to individuals, the Nuremberg
Tribunal observed that "crimes against international law are
committed by men ... and not by abstract entities and it is by
punishing individuals that the rules of international law are
enforced."

In the obverse case of individual "rights" or "standing"
vis-a-vis states, international law has, albeit slowly and
selectively, moved towards empowering individuals.

In contemporary international human rights, jurisprudence and
practice, "standing" has been accorded to individuals not only
against foreign states but also in certain limited circumstances
to nationals against their own state (such as under the European
Convention on Human Rights and the Optional Protocol on the
International Covenant on Civil and Political Rights).

Hence "individual standing" of the Filipino comfort women to
sue the state or government of Japan is not an impermissible
legal hurdle in contemporary international practice.

In most domestic legal systems and especially in civil cases
where compensation or reparations are sought, there are laws or
statutes stipulating periods of limitations beyond which claims
cannot be sustained.

The sexual enslavement of the Filipino women took place more
than half a century ago. But this fact in itself is no bar for
them to lodge their suit for compensation.

In the 1960s, the United Nations General Assembly passed
resolutions determining that there would be no limitation period
in attributing responsibility and in punishing those who had
committed war crimes and crimes against humanity.

If the enslavement of the Filipino comfort women is seen in
the context of crimes against humanity, then their civil claims
for damages against Japan should not be "time-barred".

Finally, should the current Japanese government be responsible
and pay damages for the actions of its soldiers who, under a
different administration, had committed the wrongs against the
Filipino women? Since at least most, if not almost all, of the
Japanese soldiers who had sexually enslaved the Filipino women
are, if not already dead, virtually impossible to be traced,
identified and individually sued, it remains for these aggrieved
women to sue the current Japanese government itself.

The international law concept of state responsibility entails
that a state or government can be held internationally
responsible for the internationally wrongful acts of its
officials, including soldiers even if (according to some cases
decided by international tribunals in the pre-World War II era)
they had acted "outside the scope of their duties".

And the fact that the current Japanese government did not
"employ" them is no defense for shunning responsibility or
payment of compensation. The international law principle of
government succession states that, generally, the rights and
obligations of predecessor governments devolve on successor
governments.

Overarching all these legal issues is a moral one -- the
necessity and indeed the duty of the Japanese government and the
Japanese courts to own up to Japan's wartime actions.

The current administration of Prime Minister Hashimoto appears
to be retreating from the stand taken by its immediate past two
prime ministers who had rightly apologized to their Southeast
Asian neighbors for Japan's conduct during World War II. In
contrast, the current administration seems more conservative and
recalcitrant on this issue of owning up to and apologizing for
Japan's past actions.

Recently, an elderly Japanese professor won a partial victory
in a Japanese court. He had fought a long and brave legal battle
against the Japanese government's censorship of school text books
dealing with Japan's wartime atrocities overseas.

It is hoped that in the case of the former Filipino comfort
women's search for acknowledgment and justice, the Japanese court
or courts concerned would reach a decision which is not only in
conformity with international legal principles but is also
morally appropriate and responsible.

The writer is lecturer of the School of Law of Deakin
University, Australia.