By Prof. Bharat H. Desai
On March 8, 2023, in a symbolic justice, the Committee of the 1979 Convention on Elimination of Discrimination against Women called for full reparations and official apology to the women survivors of the sexual slavery by the Japanese military during the Second World War. The Committee gave the decision “that Philippines violated the rights of women victims of sexual slavery by the Japanese military during the Second World War by failing to redress the continuous discrimination and suffering they have endured”.
This emphatic stand has revived the long saga of seeking justice for the survivors from the Japanese ‘comfort stations’. An estimated 200,000 women and girls –Korean, Chinese, Taiwanese and Filipino –who were forced to work as prostitutes in Japanese military brothels. A vast majority, however, were Korean. The Japanese army had forcibly recruited these women by deception, coercion, force and false advertisements.
The Comfort Women: Girl Statue Depicts Past as Present
The issue has been largely seen as concerning the Korean ‘comfort women’. In 2011 a bronze Statue of Girl was placed in front of the Japanese Embassy in Seoul. The Statue of Girl (Sonyeosang in Korean or Shōjo-zō in Japanese) became a powerful imagery of the plight of the women abused in the Japanese ‘comfort stations’. Each part of the statue (see the picture) was designed to convey symbolic but strong message against wartime rapes perpetrated against ‘comfort women’ (sex slaves). The treatment of the Korean ‘comfort women’ has been a major irritant in bilateral relations between South Korea and Japan often threatening trade deals and causing diplomatic rifts.
In the face of horrific past crimes, the power of imagery in the present through art or sculpture conveys a powerful protest and a resolute hope. On June 19, 2022, the International Committee of the Red Cross brought two uprooted dead trees at the place du Rhône and in Palais des Nations in Geneva. Instead of treetops, irritating, blood-red roots invading the sky became a symbolic outcry for “all the persons whose human dignity and integrity have been torn down and violated by SV in conflicts”.
Japanese Apology and Reparations
As a result of the public pressure, protests and the changed times, an agreement was arrived at on December 28, 2015 between the Government of Japan and the Government of the Republic of Korea. The Japanese foreign minister, Fumio Kishida, said that his government will give 1 billion yen ($8.3 million) to a fund to help those who suffered. His South Korean counterpart, Yun Byung-se, assured that as long as Tokyo sticks to its side of the deal, Seoul will consider the issue “irreversibly” resolved. In fact, the Agreement did admit that “Government of Japan is concerned about the statue built in front of the Embassy of Japan in Seoul”.
The Agreement, from the Japanese side, explicitly acknowledged that:
“The issue of comfort women, with an involvement of the Japanese military authorities at that time, was a grave affront to the honor and dignity of large numbers of women, and the Government of Japan is painfully aware of responsibilities from this perspective. As Prime Minister of Japan, Prime Minister Abe expresses anew his most sincere apologies and remorse to all the women who underwent immeasurable and painful experiences and suffered incurable physical and psychological wounds as comfort women”.
The far sighted Japanese Prime Minister Shinzo Abe candidly recognized the gravity and observed: “we did our duty for the current generation by reaching this final and irreversible resolution before the end of the 70th year since the war.”
‘Closure of the Past’: A Challenge for International Law
In the wake of the 2015 Japan-South Korea Agreement, this author in MA Core Course on Legal Controls of International Conflicts (IS455N), while elaborating the International Law of State Responsibility including the 2001 Articles on Responsibility of States for Internationally Wrongful Acts (Reparation for Injury, Articles 34-37) explained the context for the ‘closure of the past’. When asked for their views, one South Korean student stood up and said: “It is not enough”. Then, what is enough? The lingering past has caused deep wounds on the Korean society. It was not surprising that , in 2019, the new Government of President Moon Jae-in dissolved the foundation, for ‘comfort women’ and effectively annulled the 2015 agreement. The wartime crimes against ‘comfort women’ remains a festering wound and haunts the Japan- South Korea relations.
In most of the conflicts, SV in general and rape under orders in particular has become a predominant form of sexual and gender-based violence (SGBV) against women. The warring factions use mass rapes as a cheaper weapon than even bullets. It hits the ‘soft belly’ that hurts the society most. There is still no accounting for largescale rapes of women that took place in various conflicts such as the partition of India (1947), the Bangladesh liberation war (1971), the Sri Lankan civil war (1983-2009) and the Maoist insurgency in Nepal (1996-2006). The Sierra Leone conflict (1991-2002) became notorious for the warring factions using ‘bush wives’, another variant of the (Japanese) ‘comfort stations’.
As explained by this author in SIS Blog Special II (June 22, 2022), wars have been perceived as ‘extra-legal’ – neither legal no illegal. Yet there has been a persistent quest for ‘outlawry’ of wars (1899 and 1907 Hague Peace Conferences; 1919 Treaty of Versailles; 1928 Pact of Paris and the 1945 UN Charter). The Charter has considered war as a ‘scourge’ (Preamble) and provides a detailed ‘blueprint’ for prohibition of threat or use of force [Article 2 (4) and Article 51]. Still, numerous wars around the world leave the deep wounds including mass rape under orders that haunt the peoples and nations. The 2018 Nobel Peace Prize award (Denis Mukwege and Nadia Murad) conveyed the powerful message against the “use of sexual violence as a weapon of war and armed conflict".
The UN Security Council Resolutions 1325 (2000) and 1820 (2008) have brought the agenda item ‘women, peace and security’ and the 68th UN General Assembly (2014) endorsed a Declaration of Commitment to End Sexual Violence in Conflict. The Statutes of the UNSC mandated international criminal tribunals (ICT) in Rwanda, Yugoslavia and Sierra Leone contain crimes of sexual violence. The 1998 Rome Statute of ICC became the first global treaty that recognized rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of SV as distinct types of war crimes. Ironically, no reference was made to crimes against ‘comfort women’ by the Japanese soldiers in the International Military Tribunal for the Far East (Tokyo Trial, 1946-48).
In a foreword to this author’s 2022 book: Sexual and Gender-Based Violence in International Law (Singapore: Springer Nature), Peter Maurer (President ICRC, Geneva) asserted that wartime sexual violence is “not inevitable” and hence is it preventable. It calls for a lex specialis international legal instrument to hold the States and non-state actors accountable for rape under orders and violations of International Humanitarian Law and International Criminal Law. Still, the de-legitimization of wartime rape would remain one of the biggest challenges of the 21st century.
Dr. Bharat H. Desai is Jawaharlal Nehru Chair and Professor of International Law at the Centre for International Legal Studies (SIS, JNU), contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam) and served as a member of the official Indian Delegations to various multilateral negotiations (2002-2008) as well as coordinated the initiatives for Making SIS Visible (2008-2013) and the Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020)