Justice for 'comfort women' in Korea is long overdue
SINGAPORE -- On the 65th anniversary of the end of colonial rule, hundreds of South Koreans protested outside Japan's embassy in Seoul last week.
The issue was wartime crimes, especially the system of sexual slavery that Japan institutionalized. It planned, set up and ran a system of military brothels that enslaved 200,000 girls and women, aged 11 to 20, euphemistically called “comfort women.”
All confidential documents were destroyed as surrender to the Allies became imminent. Thus, Japan was able to deny that its “comfort stations” and the “comfort women” had ever existed.
In 1991, however, a document entitled Regarding The Recruitment Of Women For Military Brothels was unearthed at the Self-Defense Agency archives. It proved that in 1944, Emperor Hirohito promulgated Imperial Ordinance No. 519 to legalize the system of sexual slavery.
Faced with incontrovertible evidence, Japan apologized to South Korea for the first time ever in 1993. But it has insisted till today that no reparations are due since its normalization treaty with South Korea signed in 1965 settled all issues.
Could one be unfairly judging Japan's wartime conduct by today's standards? That is, did Japan's wartime government know that sexual slavery was criminal?
To answer this, legal experts suggest, the domestic and international norms in the pre-war period must be established.
Domestically, the Meiji Constitution of 1889 guaranteed that all “Japanese subjects ... enjoy the liberty of speech, writing, publication, public meetings and associations.” The arrest, detention, trial or punishment of all subjects must proceed according to the law. From 1910 to 1945, the then unified Korean peninsula was a colony of Japan, so Korean women were legally protected subjects.
Still, the Constitution permitted “the Emperor, in times of war or in cases of a national emergency,” to supersede its provisions. Even so, the Emperor promulgated Imperial Ordinance No. 519 only in 1944. Thus, the “comfort women” system was technically illegal from 1931, when it was first planned, to the very day in 1944 when it was thus “legalized.”
Internationally, the established laws of nations are embedded in treaties in force at any particular time. In a 1928 case, Japan's highest court ruled that treaties had “domestic validity.” As such, experts suggest looking at what treaties Japan was already a party to when its “comfort stations” were being planned in 1931.
First, while today's notion of “crimes against humanity” had not emerged by name yet, it was arguably nascent within the existing notion of “crimes against the peace, namely ... waging aggressive war.” That norm was suggested at the post-war Paris Peace Conference of 1919.
This conference gave rise to a commission that listed “rape ... internment of civilians under inhuman conditions ... and abduction of girls and women for the purpose of forced prostitution (as) violations of the laws of humanity.”
However, no treaty resulted. Still, Japan was one of 15 commission members, so it was well aware that other nations regarded sexual slavery as a crime against humanity.
Second, trafficking was already prohibited internationally by the Trafficking Convention of 1904. Moreover, Japan signed the 1910 International Convention For The Suppression Of The White Slave Traffic (a term that refers to sexual slavery, not the race of victims). This treaty outlawed those who “by fraud or by the use of violence, threats, abuse of authority, or any other means of constraint, hired, abducted or enticed (victims for) immoral purposes.”
Japan also signed the 1921 International Convention For The Suppression Of The Traffic In Women And Children. Under both treaties, all women regardless of nationality or location were to be protected from white slavery. But the 1921 treaty did offer exemptions in the “colonies, overseas possessions, protectorates or territories under (a colonial power's) sovereignty or authority.”
Thus, Japan might have had that right within the borders of Korea itself — but not over Koreans per se. Once the Japanese government shipped Korean women out of Korea for its brothels in Southeast Asia or China, it was acting criminally.
Third, already in 1911, Japan had ratified the Hague Convention of 1907 regarding the laws of war. This treaty prohibited invading armies from enslaving civilians and belligerents.
Then there was the 1929 Geneva Convention Relative To The Treatment Of Prisoners Of War, which held that captured belligerents may not be forced into “unhealthful or dangerous work.” Being repeatedly raped would likely count as dangerous work even if the women could ever be counted as captured belligerents.
Finally, Japan signed the 1930 Convention Concerning Forced Labour, which did exempt “any work or service exacted in ... emergency ... war or ... calamity.” But it must be extracted from only “adult able-bodied males” for 60 days or less. So even under this treaty's provisions, Japan's system of sexual slavery was illegal.
Japan's wartime government must have known that its brothels were illegal. Yet at the International Military Tribunal for the Far East held in Tokyo from 1946 to 1948, the victors prosecuted only those who had waged war. That is, while crimes against peace were prosecuted, those against humanity, including these hapless female victims, went unpunished.
Yet based on the legal norms then, post-war tribunals could have afforded them justice. After all, the Batavia Military Tribunal of 1948 did prosecute Japanese soldiers who had raped white Dutch “comfort women” in Indonesia. Three were executed and 13 convicted.
However, the very same tribunal would not look into similar cases of Asian “comfort women” who had also been repeatedly raped in the same country. Unless a victim's race still matters today, surely Korean survivors deserve some justice now before they all pass away.
The China August 21, 2010