Could Systematic Sexual Violence against Women during War Time Have Been Prevented?

Could Systematic Sexual Violence against Women
during War Time Have Been Prevented? – Lessons
from the Japanese Case of “Comfort Women”

Etsuro Totsuka

Introduction

The author wishes to stress the importance of his recent findings to be made public
at this conference for the first time relating to whether the Japanese Empire in 1930s
could have reversed its practice of military sexual slavery.

General Background to the Issue of the “Comfort Women”

Despite the criticisms and actions of the United Nations (UN), the International
Labour Organization (ILO) as well as non-governmental organizations (NGOs),
the Japanese Government has refused to take the necessary steps towards reconciliation
with the victims of military sexual slavery, namely the “comfort women”.
The term “comfort women” was first used by the military of the Japanese Empire
before and during World War II. It is a euphemism for the enslaved women victims
of sexual slavery by the Japanese military.
The author delivered an oral statement on “comfort women” as “sex slaves” to the
48th Session of the UN Commission on Human Rights on 17th February 1992 that
included the following observation:

One example was the situation of Korean girls and women abducted by Japanese
forces during the Second World War for use as sex slaves. … The former Vice-
Chairman of the Japanese House of Representatives had alleged that 57.9 per cent,
[totaling] 143,000 young girls and women, had died in enslavement. In January
1992 the Government of Japan had made an apology to the Korean People but had
offered no compensation or other effective remedy to the victims as required by
article 8 of the Universal Declaration of Human Rights. …”
Since then, this issue has been widely discussed by international lawyers. Not only
the International Commission of Jurists but also two UN Special Rapporteurs, the
ILO Committee of Experts and the Women’s International War Crimes Tribunal
on Japan’s Military Sexual Slavery(WIWCT) have recommended that the Japanese
Government take concrete action, including fact-finding, admission of responsibility
and the payment of compensation to the women victims. The UN special rapporteurs
as well as the WIWCT pointed out that Japan still has a duty to punish
perpetrators of war crimes and crimes against humanity including wartime military
violence against women.
Let me briefly summarize the current situation.
– First, the Japanese Government continues to refuse State compensation and
to opt for payment from private funds such as the “Asian Women’s Fund” on
unjustifiable grounds such as the “treaty defense”.
– Second, the Japanese courts, with one exception, the famous judgment of the
Yamaguchi District Court, have refused all demands for compensation that
have been filed by the victims. The single exceptional victory was reversed by
the Hiroshima High Court, the judgment of which was then upheld by the
Supreme Court on 25th March 2003. The offers of Korean women victims to
settle the dispute through international arbitration, an initiative strongly supported
by United Nations human rights bodies, were refused by the Japanese
Government.
– Third, the proposals made by Diet Members of the opposition parties for
a state apology by legislation and for state payment were successfully submitted
to the House of Councilors. The accompanying documents established
that such legislation would not violate international law or the
Constitution. They have been, however, blocked by the conservative Diet
Members supporting the Government.
– Fourth, the legislative proposals submitted by the Diet Members of the
opposition parties to the House of Representatives for state investigation
of the sufferings during wartime also have been blocked by the conservative
Diet Members supporting the Government.
– Fifth, the government has not admitted that the Japanese Imperial Military
committed any crimes under Japanese domestic law.
– Sixth, no admission of any violation of international law was offered by the
Government.
– Seventh, no further investigation by the Government is being conducted.
This stagnation may delay achieving not only women’s human rights, as it will
slow down the prevention of further systematic violence against women, but also
peace in the world.
The author of this paper wishes to review the history of the Japanese case of
military “comfort women” and to discuss whether Japan could have prevented such
systematic violence against women by relying on legal measures.

Development of International Law in the 20th Century

In the early stage of the Meiji Era, namely in the second half of the 19th Century,
Japan showed strong willingness to abide by international law and ratified or
acceded to some important treaties.
The three following international instruments are relevant for the purpose of
this paper. All were major multilateral treaties that the international community
devised to suppress the slave trade in women and children, specifically the use of
white slaves for prostitution, after having made some progress in suppressing international
trade in black slaves:
(1) The International Agreement for the Suppression of the White Slave Trade, signed at
Paris, on 18th May 1904.
(2) The International Convention for the Suppression of the White Slave Trade, signed
at Paris on 4th May 1910. Article 1 of the Convention is explicit that those who
solicited, enticed or abducted juvenile women with the purpose of prostitution
should be punished, even if the consent of the women was obtained. Article 2 is
explicit that those who solicited, enticed or abducted adult women using deception
or any means of violence, coercion, abuse of authority or any other coercive
measures, should be punished. Article 3 obliges the state parties to take necessary
measures in order to ensure punishment of the perpetrators of the crimes
defined by Articles 1 and 2.
(3) The International Convention for the Suppression of the Traffic in Women and
Children, concluded at Geneva on 30th September 1921.
Japan ratified or acceded to these instruments in 1925. Although Japan has not ratified
the Slavery Convention, adopted at Geneva on 25th September 1926, the author
believes that the prohibition against slavery and the slave trade was a norm of international
customary law at the time this Convention was adopted.
The Convention concerning Forced or Compulsory Labour was adopted by the
General Assembly of the ILO on 28th June 1930. Japan ratified this Convention
on 15 October 1932. The first sentence of Article 2 prohibits any forced labour of
women. Article 24 stipulates: ‘the illegal exaction of forced or compulsory labour
shall be punishable as a penal offence, and it shall be an obligation on any Member
ratifying this Convention to ensure that the penalties imposed by law are really adequate
and are strictly enforced.’
On 11th March 1933, the Cabinet of the Japanese Empire decided to withdraw
from the League of Nations. This was a symbolic decision that inevitably isolated
Japan from the international community and followed a series of undeclared wars
waged against China by the Japanese Imperial Government and Military. Through
these actions, Japan seemed to have substantially abandoned its willingness to
respect international law.
The author’s view is that Japan has not as yet regained a willingness to abide by
international law, a view reinforced by its attitude to UN attempts to deal with the
current issue of military sexual slavery.

Creation of Military Sexual Slavery by Japan

The leading historian, Professor Yoshiaki Yoshhimi wrote:
When were the first military comfort stations established, and how did the system
expand? As noted above, since the materials that remain are only the tip of the
documentary iceberg, it is very difficult to give a definitive answer.
According to the recollection of Okamura Yasuji, Vice Chief of Staff of the
Shanghai Expeditionary Force (commanded by General Shirakawa Yoshinori), the
army was schooled in the military comfort women system by the Japanese navy in
Shanghai. It appears, then, that the first comfort stations were constructed by the
navy.
The naval comfort stations established at this time were large enough to
occupy several buildings. A document from a slightly later period reveals that at
the end of 1936, there were ten restaurants employing serving women (102 of those
women were Japanese, while 29 were Korean). Of these ten establishments, seven
were reserved exclusively for naval personnel.
The lack of official documents, that otherwise might provide the facts surrounding
the birth of the military “comfort stations” and its criminality, allowed many conservative
observers room to argue that the military’s behavior against the women
victims constituted “no crime”, since the state regulated prostitution system “lawfully”
existed. This has been one of the major reasons why the Japanese Government
has been able to ignore the pressure for a state apology from the international community.

Responses of the Japanese Legal System against Military Sexual Slavery by Japan

The author has had the good fortune to locate the earliest District Court and Appeal
Court judgments of the Japanese criminal court against ten private entrepreneurs,
who deceived and trafficked 15 Japanese women from Nagasaki to a Japanese Naval
“comfort station” in Shanghai, China. It was already known as early as 1997 that in
1937 the then Supreme Court had endorsed the judgments of the District Court and
the Appeal Court. The lower Courts’ judgments, however, had not been found.
As it was assumed by the researchers, including myself, that the judgments must
have been destroyed by the atomic bomb dropped in August 1945 by the United
States onto Nagasaki City, nobody attempted to find them. They, however, had survived.
The Nagasaki District Court Judgment clearly shows the following facts,
which, except for some information contained in the Supreme Court judgment,
were not previously known.
The indictment against the defendants was issued by a prosecutor of the
Nagasaki District Court. The defendants were ten Japanese, consisting of seven men
and two women from Nagasaki and one man from Shanghai. The name of the
defendants’ legal counsel was not included in the judgment. The decision was issued
on 14th February 1936 by a panel of three judges of the Criminal Division of the
Nagasaki District Court.
The Court found that all defendants under a series of conspiracies deceived and
trafficked 15 Japanese women in Nagasaki to a Japanese Naval “comfort station” in
Shanghai, China and that they were guilty of committing crimes defined by Article
226 (1) and (2) of the Penal Code.
The defendants in this case were sentenced to penal servitude for periods up
to three years and six months. It is important to note the date, 7th March 1932,
when the initial conspiracy was entered into by three male defendants at an Inn in
Shanghai. The defendants discussed how they could abduct by deception and traffic
women from Nagasaki, Japan to a “comfort station” designated by the Japanese
Imperial Navy to be newly set up in Shanghai, China. They agreed on the methods
to recruit women to a Naval “comfort station”, pretending that the women would be
well paid for work in an ordinary workplace such as a restaurant or café, without telling
them the truth that they were to be forced to give sexual services to the Japanese
officers and soldiers. They approached the fifteen women victims during the period
from 10th March to the beginning of May. The date of the first shipment of the three
women victims from Nagasaki to Shanghai was 14th March 1932.
This finding, which accords with the findings of the historian, Professor
Yoshimi, strongly suggests that the Nagasaki District Court judgment was probably
made in relation to one of the first cases of abductions of military “comfort women”
recruited to the first Naval “comfort stations”. According to Professor Yoshimi: ‘It
was around this time [in March 1932] that the Japanese army and navy units dis-
patched to Shanghai established the first military comfort stations. … It appears,
then, that the first comfort stations were constructed by the navy.’
The fifteen women victims were recruited from Nagasaki and appear to have
been Japanese homeland citizens. As the former known “comfort women” (with
a few exceptions) are not Japanese homeland citizens, this judgment adds a fresh
aspect for the researchers in this area.
The pattern of recruitment is strikingly similar to the many Korean cases of the
abduction of women.
The legal basis of the judgment was Article 226 (1) and (2) of the Penal Code.
This Article substantially implements the provisions of international law, mentioned
above, namely the three instruments against trafficking in women for prostitution.

The judgment successfully punished the perpetrators of abductions of and trafficking
in the women to a Naval “comfort station” by enforcing the Penal Code. This
meant that the Japanese domestic judicial system effectively achieved realization of
the rule of law and that Japan abided by international obligations in these instances.
This success story of the then administration of justice surprised the author, as this
happened at the time of rising Fascism and Militarism in Japan. Just two weeks
after this judgment, the February 26 Incident, an attempted coup d’état took place.

Limitations of the Judicial System

Significant limitations on this success story should be noted which may have impeded
the prevention of recurrences of similar crimes. The judgment strongly suggests that
the Japanese police and prosecutors already knew that the conduct of the defendants
conspiring with the military against those fifteen women victims were criminal in
nature and constituted unlawful cross border abductions. They failed, however, to
punish any military personnel, although they clearly knew about the involvement of
the Japanese Navy in Shanghai, who must have initiated a series of actions to abduct
the women victims. This must have been the starting point of the de facto impunity
in relation to the enormously large-scale later crimes accorded to the military.
These limitations on judicial power, which should be examined by researchers,
suggest that domestic laws and the adoption of international treaties are not enough
to prevent further violations of human rights.
If the Japanese law that incorporated international law had been more effectively
implemented, it would have been possible for Japan to prevent the further
recurrence of violations of women’s human rights. Not only the Japanese domestic
legal system but also the international law system, however, lacked the mechanisms
for effective implementation.
The judgment dated 28th September 1936 of the Nagasaki Appeal Court basically
supported the Nagasaki District Court Judgment, although it reduced the periods
of penal servitude for five of the eight appellants. The Supreme Court judgment
dated 5th March 1937 turned down the further appeal made by the seven appellants
(defendants).
There is no other known case of punishment by the Japanese justice system of
the crimes against the “comfort women”. The only other known precedent of the
punishment of perpetrators was for crimes against Dutch victims of military sexual
slavery by Japan in a judgment delivered by a military war crimes tribunal constituted
by The Netherlands in 1946. The Dutch military tribunals were largely indifferent
towards non-Dutch Asian victims.

Administrative Power and De Facto Impunity

How did the state of perfect de facto impunity arise? If the Japanese Government
had seriously tried to abide by international obligations and to implement the provisions
of the Penal Code in order to prevent further recurrence of the crimes against
the “comfort women”, the cross border trafficking in such women would have been
suppressed.
The Supreme Court judgment was followed by a series of administrative
measures taken by the government. Instead of suppressing the trafficking in such
women, the Home Ministry, which controlled the police decided to tolerate it, as it
was regarded as a necessary evil. The Home Ministry was first involved in the issue
of “comfort women” in February 1938. It issued a notice entitled ‘Matters Regarding
the Treatment of Women Sailing to China’ (dated February 23, 1938). Orders were
made tacitly approving the transport of ‘women whose purpose [for going abroad]
was the “shameful calling” (such as comfort women), but only in cases where their
destinations were northern and central China’. It is clear from this notice that the
Home Ministry was aware of the international legal position. The notice ordered
that any involvement by the Imperial Forces had to be suppressed in order to maintain
their honour. It was cleverly formulated, however, so that any persons who were
ordered by the military to transport such women to China could do so as long as
they concealed the fact that they were working for the military and that the destination
was military “comfort stations”. Thus, all women recruited to military “comfort
stations” had to be deceived. As a result, all cases of trafficking in women to military
“comfort station” inevitably constituted crimes of abduction by way of deception, in
violation of Article 226 of the Penal Code.
These events were soon followed by one of the key military documents, a notice
entitled “Matters Concerning the Recruitment of Women to Work in Military
Comfort Stations,” issued on March 4, 1938 by an adjutant in the Ministry of War’.
The Ministry of War, learning from the lesson of ‘people who kidnap women and
are arrested by the police’, instead of banning the recruitment of women to “comfort
stations”, ordered that ‘In the future, armies in the field will control the recruiting of
women and will use scrupulous care in selecting people to carry out this task. This
task will be performed in close cooperation with the military police or local police
force of the area.’ This was ordered ‘for preserving the honor of the army and avoiding
social problems.’
There must have been many meetings for “close cooperation” in the ensuing
period. ‘According to the records of the Consulate of Nanking, in April 1938 there
was a gathering of relevant officials from the army, navy, and Foreign Ministry at
the Nanking Consulate. They jointly agreed on matters concerning the authority to
license and regulate imperial subjects engaged in various businesses. It was decided
in regard to the army’s exclusive “store” (shuho) and comfort stations that “consulates
will not interfere with establishments managed and supervised directly by the
army”’ Thus, the system for de facto impunity was complete.

Were “Loopholes” in International Law Responsible?

There is consensus that ‘Korean women became the primary targets of efforts to
round up comfort women’. Professor Yoshimi attributes this to ‘the loopholes in
international law’, namely the exemption clauses in relation to colonies in three
international treaties including the 1910 treaty (Article 11) and the 1921 treaty (Article
14) for suppression of trafficking in white slaves. He writes: ‘Thus the government
and the military considered the rounding up women in Korea and Taiwan exempt
from the restrictions imposed by international law and turned Korea and Taiwan
into supply depots for military comfort women.’
This author is not convinced by Professor Yoshimi’s argument for the following
reasons:
– First, despite the provisions exempting application to colonies in the three treaties
mentioned above, the treaties could be applied to trafficking in “comfort
women”, where the victims were transported by a Japanese ship or via any port
in Japan.
– Second, Japan had ratified the 1930 ILO Convention No. 29 concerning forced
labour, which prohibited any forced labour of women. The ILO convention was
applicable in not only the home territory but also in Japanese colonies.
– Third, the author believes that trafficking in men and women was also prohibited
at that time under customary international law prohibiting the slave trade.
– Fourth, as the Nagasaki District Court judgment proved, the provisions in
Chapter 33 of the Penal Code including Article 226 that prohibited abductions
of and trafficking in women and children were applicable to the cases of
“comfort women”. As the Penal Code of Japan was introduced into colonies of
Japan, such as Korea and Taiwan, the same provisions were effective there as
well. There should be no doubt that this was common knowledge amongst all
officials in colonies such as Korea and Taiwan.
Consequently, the author believes that there existed in colonies such as Korea and
Taiwan, provisions of both domestic and international law, under which the abductions
of and trafficking in the women victims to military “comfort stations” could
have been suppressed. As a result, one may conclude that what was responsible for
de facto impunity was not lack of legal provisions or the exemption clauses, but a lack
of willingness of the Japanese Government to enforce the law.
Further research needs to be conducted to discover the reasons why the law
was not effectively enforced in Japanese colonies, particularly in Korea. The author
wishes to raise a hypothesis that the major cause of de facto impunity in the colonies,
particularly in Korea, was not deficiencies in international law but the lack of political
will to apply the law. The colonization process did not go smoothly. The author
believes there was personally directed coercion by the Japanese military against the
ministers of the then Korean Emperor and that the 1905 Treaty between Korea
and Japan did not take effect. It was followed by a period of violent suppression
by Japan, when all Governors’ General of Korea were appointed from the Japanese
military. In such circumstances there would have been little political will to punish
the perpetrators, who committed crimes against Korean military “comfort women”.
In such a situation no law could be applied, as the legal systems for effective implementation
were not part of the colonial structure.
In Japan, we have a proverb: ‘A thief cannot be made to twist a rope to catch a
thief.’ How can we effectively enforce law to punish the perpetrators of any crimes,
where those responsible for the maintenance of the legal system are directly or indirectly
responsible for the crimes?

Conclusions

The measures that could have dealt effectively with military sexual slavery were not
taken by the Japanese Government. Instead, the defects in Imperial Japan’s legal
system resulted in a failure to effectively confront the military’s demands for de facto
impunity as regards military sexual slavery. This is one of the most probable explanations
of the failure of the Japanese legal system, which allowed the rapid growth of
this monstrous system of inhuman, degrading and torturous treatment of women. It
is essential for research to be conducted into comprehensive legal systems that could
effectively be implemented to cope with de facto impunity in order to prevent any
recurrence of violations of women’s human rights during any military conflict.
The finding of the Nagasaki District Court judgment symbolizes the Japanese
Government’s failure in fact-finding concerning the issue of “comfort women”.
Despite its repeated promises before the Diet, the Government did not make public
the documents it possessed, such as those in the Ministry of Justice. This failure
constitutes a substantial cover-up, although most governments wish to hide their
failures. It is essential to ensure accountability of governments through freedom of
information in order to protect the human rights not only of a State’s own citizens
but also all peoples in the world.
Finally, it also should be asked, if women had been equally represented in the
judicial system as well as in the military and other governmental offices, would the
result have been different?

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