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.