The Judgment of the Tokyo Women's Tribunal

Despite its negative connotations this article will continue to use the term Comfort Women as the survivors themselves have decided to use the term because of the notoriety it has gained since the 1990s.

Preliminary findings were issued on 12 December 2000. These addressed the responsibility of Emperor Hirohito for the crimes committed against the Comfort Women.

Judgment of The Women's International War Crimes Tribunal 2000 for the Trial of Japanese Military Sexual Slavery delivered in The Hague, December 2001 at para 949 (‘Judgment’). A copy of the Judgment is in the possession of the author.

For a thorough analysis of the concept of reparations, see Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final Report, submitted by Mr Theo van Boven, Special Rapporteur of the UN Subcommission on the Prevention of Discrimination, UN Doc. E/CN/4/Sub.2/1993/8 (2 July 1993) and The Right to Restitution Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final Report of Mr M. Cherif Bassiouni, Special Rapporteur of the UN Commission on Human Rights, UN Doc.E/CH.4/2000/62 (18 January 2000).

Most notable of these has been the health and financial benefits put in place by the government of the Republic of Korea (South Korea).

Non-government organisations have reported on the issue, see e.g., Dolgopol U Paranjape S , Comfort Women — An Unfinished Ordeal (International Commission of Jurists 1994) and two UN Special Rapporteurs have undertaken investigative missions to Japan and elsewhere in the region, see, ‘An Analysis of the Legal Liability of the Government of Japan for ‘Comfort Women Stations’ Established during the Second World War’, Appendix to the Final Report on Systematic Rape, Sexual Slavery, and Slavery-like Practices during Armed Conflict, submitted by McDougall Gay J , Special Rapporteur, UN Doc. E/CN.4/ Sub.2/1998/13 and Report on the Mission to the Democratic People's Republic of Korea, the Republic of Korea and Japan on the issue of military sexual slavery in wartime, Addendum to the Report of the Special Rapporteur on violence against women, its causes and consequences, Ms Radhika Coomaraswamy, UN Doc. E/CN.4/1996/53, Add.1, 4 (January 1996).

The Judgment uses the phrase ‘Comfort System’ in order to highlight the effort and planning undertaken by Japanese military and government officials to set up a network of military brothels known as ‘Comfort Stations’. The first ‘Comfort Station’ was established in China during 1932. Paragraphs 145–372 of the judgment trace the history of the military's use and involvement in the creation, maintenance and regulation of the ‘Comfort Stations’ as well as the participation of government officials in territories under Japan's colonial or military occupation in the forceful or deceitful taking of women and girls for the purpose of being put into the ‘Comfort Stations’.

See Judgment at paras 973–88 and the discussion of this issue below in the section on ‘State Responsibility’.

There have been previous ‘peoples tribunals’ the most famous of which was the Russell Tribunal that examined the atrocities committed by US soldiers in Vietnam.

Based in South Korea; the principal representative to the steering committee for the Tribunal was Professor Yun Sun Ok.

A women's human rights organisation based in the Philippines; the principal representative to the steering committee was Indai Sajor.

Headquartered in Tokyo but with support networks throughout Japan; the principal representative to the steering committee was Yayori Matsui

China, East Timor, Indonesia, Malaysia, The Netherlands, North Korea, South Korea and the Philippines.

As Martha Minow has observed, the atmosphere of a truth commission where witnesses are encouraged to tell their stories in a non-threatening environment is probably more conducive to the healing of victims than a criminal trial. See Minnow M , Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (1998).

Article 75 of the Statute for the International Criminal Court.

Judgment, para 516.

Following World War I the Commission on Responsibilities of the Paris Peace Commission of 1919 drew up a list of war crimes. That list included the crimes of rape and enforced prostitution. By 1941 the Allied Nations were discussing the possibility of holding war crimes trials at the close of the Second World War (declarations to this effect were made continuously throughout the war as atrocities being committed by Germany and Japan were reported in the media) and they used the Peace Commission list when instructing their armed forces about possible charges and the evidence they would need to collect. See Dolgopol U. , ‘Rape as a War Crime-Mythology and History,’ in Sajor I. (ed) Common Grounds (ASCENT Manila 1998).

Judgment, para 530. The other threshold requirements for crimes against humanity are discussed in paras 528 and 529.

A slightly different approach is taken with respect to the crime of sexual slavery. As explained below this crime is based on crimes such as enslavement and enforced prostitution recognised at the time the IMTFE took place, but it was not given that nomenclature. The judges of the Tribunal adopted the phrase sexual slavery rather than enforced prostitution because of the women's concern that use of the phrase ‘prostitution’ in any sense would re-open the shame they have felt about what happened to them.

UN Treaty Series, vol 36 at 47 as cited in U Dolgopol and S Paranjape, above, n 6. See also Judgment, para 510. In addition to outlining the rules applicable at the close of the war the judgment includes an excellent summary of recent developments in international law. These are used to demonstrate how the principles developed during the Nuremberg and Tokyo tribunals have been refined and enhanced by the International Tribunals for Yugoslavia and Rwanda. Recent materials are also cited by the Tribunal when considering specific issues that did not arise at either Nuremberg or Tokyo.

UN Doc. A/CN.4/L.602, adopted by the Drafting Committee on second reading (25 May 2001) as cited in the Judgment at para 894.

The description of the proceedings is based on paras 40–43 of the Judgment as well as the author's observations.

Gabrielle Kirk McDonald (Presiding Judge, formerly Presiding Judge at the Tribunal for the former Yugoslavia), Carmen Arguibay (Argentinean Judge and Ad Hoc Judge at the Tribunal for the Former Yugoslavia), Christine Chinkin (Professor of Law, London School of Economics) and Willy Mutunga (Chair, Human Rights Commission of Kenya, a non-government organisation). In keeping with the view that this was an event of major international significance and that the proceedings had to be and had to be seen to be conducted in a manner that came as close as possible to approximating a judicial hearing, leadings jurists and international scholars were approached to sit as judges. They were guaranteed their independence. The Judgment issued by the Tribunal is the intellectual work of the judges and their assistants and their determinations on matters of evidence and legal argument are theirs alone.

Some of the Japanese experts and the former soldiers reportedly received threatening messages and telephone calls during the Tribunal.

See eg, Hicks G , The Comfort Women: The Sex Slaves of the Imperial Japanese Forces (1995) and Dolgopol U and Paranjape S , above, n 6.

Medical Sociology Department of Seoul National University.

Director, Imam Counselling Center.

Judgment, para 451.

Judgment, 453.

Judgment, para 461.

Enforced prostitution was listed as a war crime following the close of World War I. See Dolgopol U , above, n 17.

Judgment, para 612.

Judgment, para 583.

Judgment, para 583.

The judges note that their view about the constitutive elements of the crime is supported by the judgment in Prosecutor v Dragoljub Kunarac, Roadmir Kovac and Zoran Vukovic, Judgment, IT-96-23-T & IT-96-223/IT (22 February 2001) (a judgment of a Trial Chamber of the ICTY). See Judgment at paras 621–627 for a discussion of this judgment.

Report of the Preparatory Commission for the International Criminal Court, Addendum Part II: Finalised draft text of the Elements of Crimes, PCNICC/200/Add.2. Noting that the limited definition adopted in the Annex would in fact cover the acts in this case, the judges were concerned that ‘legitimate cases of enslavement and sexual slavery’ could be excluded from the International Criminal Court's consideration if the narrow definition of these crimes was adopted by the Prosecutor and the court itself. The judges noted that the Elements Annex is not binding on the International Criminal Court and that the enunciation of the crime in the Statue is broader than the definition given to it in the Annex. See para 630 of the Judgment.

As cited in Judgment at footnote 478.

Kunarac Trial Chamber Judgment, paras 542 and 543, as cited in Judgment above, n 35, at para 622.

See Judgment, para 877 for the text of the ILC recommendation.

The concept of an ongoing violation has two prongs. The first is the toleration of a violation by a government that changes the nature of the government's responsibility. This is the type of ongoing violation referred to by The International Court of Justice in the Iran case. (United States Diplomatic and Consular Staff in Teheran Case (United States v Iran) 1980 ICJ Rep 3, as cited in M Dixon and R McCorquodale, Cases and Materials on International Law (1991) 407–8. The second is where a government refuses to cease violating its international obligations. This issue was discussed in the Namibia case where the ICJ noted that international responsibilities arise from continuing violations. (Namibia Case 1971 ICJ Rep 16 as quoted in Dixon McCorquodale at 401.)

See eg, Minow Martha , above, n 14.

Judgment, para 942.

Many of the documents relating to Japan's war strategy and the conduct of the war were destroyed as the war came to a close in line with government directives. See paras 937–40 of the Judgment describing the expert and documentary evidence submitted to the Tribunal with respect to this issue.

A report on Professor Yoshimi's efforts was published in the Asahi Simbun (a leading Japanese daily newspaper) in January 1992. Some of the documents from his initial discoveries are described in the Dolgopol and Paranjape, above n 6 at 40–3. A more complete collection of the documentary material uncovered by Profession Yoshimi can be found in Yoshiaki Yoshimi , Comfort Women: Sexual Slavery in the Japanese Military During World War II ( O'Brien Suzanne trans, 2000).

Judgment at para 943. Other expert witnesses, namely Professors Yamada and Yoshida, supported Professor Yoshimi's testimony.

The distinction between ‘owabi’ and ‘shazai’ is described in Judgment at paras 973–4. The former is the word used by the government and the latter is the term experts believe should be used.

Judgment, para 974.

These comments are described in paras 987–8 of the Judgment.

Others are directed at the former Allied nations and the remainder are directed to the United Nations.

The full text of the recommendations is contained in paragraphs 1053–55 of the Judgment. Some of the recommendations are directed at the former Allied nations as well as the United Nations. Many women's groups in the Asia-Pacific region have argued that rape and sexual slavery are an outgrowth of the underlying inequality of women. If women continue to be treated as inferior and as objects in society during peacetime then it is inevitable that their position will deteriorate during war. They also note that the militarisation of any society or region has negative consequences for respect for the human dignity of women.

The Victims Trust Fund was created by the Court to receive voluntary donations to augment the funds available for both individual reparations and the provision of services to those affected by war crimes and crimes against humanity. The website for the Victims Trust Fund is: <http://www.victimstrustfund.org/>.

One of the main organisers of the Tribunal, Yayori Matsui, died in December 2002. In her will she has devoted her estate to the establishment of such a museum.

Ballengee M , ‘Comment: The Critical Role of Non-governmental Organisations in Transitional Justice, A Case Study of Guatemala’ [1999–2000] 4 UCLA J. Int'l and For Aff. 477 at 479.