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Analysis
Last Updated: 03/11/2009
Comfort Women and the Failure of International Law
Seong Eun Jenny Lee

Seong Eun Lee discusses the failure of international law to hold states responsible for their use of women as sexual slaves during the Pacific War. The history of international treaties and regulations outlawing such behaviour are briefly reviewed, as is the current state of the former comfort women's struggle for justice. The author argues that interlocking structures of oppression based on power imbalances of gender and ethnicity have continued to frustrate this struggle in the arena of international law.

Key words: Korea, Japan, comfort women, international law, development, South Asia, World War II, gender, peace and conflict, ethnicity, sexual slavery, justice.


In June and July of last year I was blessed to have an opportunity to observe and participate in weekly demonstrations outside the Japanese embassy with the former Korean Comfort Women. By this time, I had already done research to fulfil my lifelong curiosity about the atrocities Korea had experienced; most of which have gone unnoticed. Whether it was the vague memory of my grandfather’s lamed toes that he used look at with pained memory, or my Korean patriotism hidden beneath my Australian identity, it was quick for me to find deep respect for these women, who were mostly in their 80s and 90s. They and all the activists were actively participating in the cause they started almost 20 years ago – a simple cause – of seeking justice and truth for an event that had been swept under the carpet for 63 years.

My short luncheons and short dialogues about the taste of kimchee or bibimbab after the demonstrations reminded me of what Noble Laureate Alexander Solzhenitsyn had said about justice:

Justice is conscience, not a personal conscience but the conscience of the whole of humanity. Those who clearly recognise the voice of their own conscience usually recognise the voice of justice.

There have undoubtedly been many significant revolutions in International Law since the end of World War II. However, the notion of international law was unfamiliar and closed to a majority of Asia until the late 1800s. Regardless, Japan was successful in adopting Western political, judicial and military institutions at the turn of the twentieth century, despite the short relationship between the East and the West. Its position as a founding member of the League of Nations and its ratification of multilateral and bilateral treaties are also a portrayal of its position in the international political sphere, and its acceptance of responsibilities which followed.

However, what has “come out” of international courtrooms after World War II on the issue of “Comfort Women” are distorted portrayals of justice based on gender, class and ethnicity. The fifty years of silence on this issue was the result of the complex, intermingling relationship of the former colonial power, gender and class. The lack of justice, despite the vigorous activism and support from the international community is again, based on power, gender and ethnicity.

This paper will evaluate the legal responsibility of the states during and after World War II (mainly Japan and Korea) in addressing the issues indicated above, in accordance with primary sources of international law (treaties, custom and general principles of law) and assess the areas of contention in international law, as highlighted by the case of the comfort women[1].

Background

“Military comfort women”[2] (jonggun wianbu, - term used in Korea) refers to a group of girls and women in Korea who were systematically and, in many cases, coercively recruited by the Japanese forces under the banner of Jeongshindae (“Voluntary” Labour Service Corps)[3], during the Asia Pacific War (1931 - 1945). There were also other young girls and women in East Asia and the Pacific islands (Taiwan, Japan, Philippines, China, Dutch women in Indonesia[4]) who were coerced to engage in sexual slavery and servitude by the Japanese Imperial Forces.

The exact number of comfort women mobilised to the Japanese military brothels is currently unknown, as key historical documents were destroyed by the Japanese government after their defeat.[5] However, based on a few documents that indicated the ratio of Japanese soldiers to comfort women, the numbers were roughly estimated to range between 100,000 and 200,000[6]. Of these, 80% to 90% were Koreans.[7]

Min is one among many scholars who specialise in the study of “Comfort Women”. She comments on how colonial power had interplayed with gender in the mobilisation of these women. She believes that a vast majority of the sex slaves were Koreans because it was a colonial country and it had a comparatively large population in comparison to other states, such as Taiwan. Extreme forms of abuse and humiliation towards the Korean sexual slaves were not discouraged because authorities were highly prejudiced against Koreans and considered the women “subjects” of the Japanese colony.[8]

In addition, the majority of these women were from poor, rural backgrounds, had received little or no formal education, and were young and naive. The strong Korean sense of filial piety and poverty made these women easy bait for “human traders” who lured them with false promises of well-paying jobs or the opportunity to go to school. A large number were coerced in one form or another, while a small portion of women were sold by their own or adopted parents or husbands.[9] However, when such tactics did not yield the numbers needed, direct recruitment through police or local government became more common.[10] A vast majority of the women who were enslaved were under the age of 20, and some girls were young as 12 years of age when abducted.[11]

Although I will not delve into details in this paper, interviews with wianbu halmonies, former soldiers and research done by scholars all indicate consistent recollection of horrific experiences at the hands of the Japanese military. Min summarises these experiences simply by saying they were, “[C]onfined to filthy shanties, ….were forced to have intercourse with Japanese soldiers, from 10 to 30 times per day[12]. They were regularly subjected to torture, beating, burning, and sometimes tabbing. Some women died of venereal disease in military brothels, while other women committed suicide.”[13]

International Law? - What Law?

The basic nature of international law and treaties, it’s themes, distinction and clarity, were palpable at the turn of the twentieth century and multilateral treaties that clearly prohibited forced labour and sex trafficking existed, which Japan had ratified.[14] All these treaties condemned forced prostitution and required the states to take necessary steps to prevent trafficking. The International Convention for the Suppression of the White Slave Traffic of 1910 specifically developed this concept in article 1[15], with a provision for criminal punishment for offenders. As cited in an Amnesty International Report, and in various formal statements, the Japanese government had always defended any discrepancy between this issue and international law based on article 14[16] of The International Convention for the Suppression of the Traffic of Women and Children (1921), which exempts this prohibition in colonized nations, such as Korea.[17]

Japan’s interpretation of this article defeats its purpose and violates its spirit, as it was created for the gradual eradication of trafficking, not to foster a future for the trafficking of women or to be used as a loophole to use Korea, and other colonies, as “safe harbours” for the sexual slave trade.[18] Japan’s legal responsibility over their colonial subjects is reflected in article 23(b) of the Covenant of the League of Nations in the “just treatment of the native inhabitants”[19], which is contrary to the systematic and long – term institutionalised system of the “comfort stations”. This carries the notion of an environment that creates an image of an individual who is made a social outcast, or who can be described as someone’s property, with no freedom of choice that is forced into compulsory labour. Testimonies of wianbu halmonies expose their coercion into sexual labour, as they explain how they were despised and depersonalised as if they were personal property of the soldiers who called them their “sanitary public toilets”. Almost all did not receive any form of payment.[20]

Further, by the opening of the first “comfort station” in Shanghai in 1932, slavery in any act or form was prohibited under customary international law. Rape during war time was prohibited in armed conflict as early as the 17th century, with legal advance on the issue in The Hague Regulations that Japan had ratified in 1911.

There were at least 20 international agreements created to suppress the slave trade, slavery or slavery-related practices, in addition to prohibition of slavery under national law. Consequently, slavery was also prohibited under Japanese national law[21], and the same prohibition should have been consistent with Koreans, who were legally Japanese nationals under colonialism.

Regardless of the boundaries of international law, the coercive and often deadly brutal tactics of the Japanese Imperial Forces upon civilians, and their violation of international law with the trafficking and slavery of the “comfort women”, did not attract any adverse criticisms from states such as Britain, America or other European States until the Nanking Massacre in (1937), when the atrocities against the “comfort women” had been systematically in place for 5 years.

Perhaps it was the lack of interest by the “high contracting parties” in regards to Japan’s actions on a “colonised state,” that, unlike a country like China, had no considerable political or economic power or influence. This was a failure of the League to supervise the execution of “agreements with regard to the traffic of women and children..,”[22] as articulated in the same article of the Covenant of the League of Nations.

For the Political Guinea Pig, Nothing for the Victimised Mice

The International Military Tribunal for the Far East (IMTFE) lasted almost three times longer than that of the Nuremburg Trials. The IMTFE, like the Nuremburg Trials, created room for critical attention, but instead, was neglected since its inception[23] and execution.

Regardless, the mandate of the tribunal covered the acts committed between 1st January 1928 and 2nd August 1945 on crimes against peace (Class A), war crimes (Class B) and crimes against humanity (Class 3)[24].

For many critics, like Judge Radhabinod Pal, IMTFE portrayed “victors’ justice” in that crimes such as the bombing of Hiroshima and Nagasaki were never addressed, nor were the rapes of “comfort women” by the American Occupation Forces in comfort stations[25]. Political agendas of the Allied Forces became a priority, rather than justifying the trials based on legitimate moral basis of international law. The exoneration of the imperial family had undermined the credibility of the trials. It had distorted the purpose of the IMTFE Charter to try individuals responsible for crimes against peace, in which at least six members of the Imperial family were involved – including the Emperor himself.

However, unlike the Nuremburg Trials, only the Japanese war crimes suspects who were classified as “A” were tried in Tokyo and all other war criminals were to be tried by national and other courts. For reasons unknown during this research, the crimes perpetrated by Japanese Imperial Forces and its authorities in Korea were not part of the proceedings.[26] Korea was also in no position to try any of the Class “B” or “C” Japanese criminals, as it did not even have a working government at the time.

The Batavia court that was held by the Dutch was the only one to try and punish the Japanese responsible for coercing 35 Dutch women into prostitution. One accused individual was condemned to death and others were sentenced to imprisonment ranging from two to fifteen years. They were found guilty for coercion to prostitution, abduction of the victims for forced prostitution, rape and mistreatment of prisoners. The court also found that Japan was responsible for the atrocities perpetrated by the then military on the “comfort women”.[27]

This was the only trial that directly dealt with the suffering of the “comfort women”. However, the crimes against the estimated 200,000 women from Korea, China, Taiwan, Philippines, and Malaysia were ignored. The United States Army had even made a study on the comfort women.[28] Notably, Colonel Chan’s interviews with Korean comfort girls who were imported and abandoned by the Japanese Army in Burma states that there were “no official records of the Korean comfort girls. No one knows how many…were forced into prostitution…Estimates run as high as 200,000. Mostly daughters of Korean farmers and peasants…”.[29]

In 1956, Japan paid the Dutch government $10 million in order to resolve certain private claims by Dutch civilian internees. Since there were approximately 110,000 internees, the figure only amounted to about $91 per person (about 32,727 yen at the time).[30] Nevertheless, these actions posit a consequential relationship and influence of ethnic background and politics, which Hicks does not hesitate to inference as, “a reflection of racist bias just as the failure of the Allies to try those responsible for the comfort system [are] a reflection of sexism.”[31]

The transnational social movement for redress began in the early 1990s[32], with the testimonial of Kim-Hak-sun, and other wianbu. The long silence on this issue is a vindication to the cultural legacy of a patriarchal society that had retained double standards for the sexual behaviour of women and men. In the tradition of Korean patriarchy, sexual freedom for men was encouraged, while women were controlled by standards of virginity/chastity.[33] Even with the full knowledge of the horrific events during World War II, many victims feared coming forward, as women who lost their chastity, regardless of circumstance, were ostracised by their families and society.[34]

Since the first testimonial of Kim Hak-sun, women’s rights activists and the wianbu halmonies have seen and experienced many victories. The support for the forgotten victims of the international legal justice system of the mid 1990s are increasing day by day, and the crowd in front of the Japanese Embassy in Seoul is always full – in many occasions, it sees the presence of many foreigners.

With the help of various human rights and women’s rights activists and organisations, this case was able to stand in the Federal District court in the District of Columbia, in the Supreme Court of Japan, and other international legal proceedings. Already, three special rapporteurs from the United Nations have investigated this issue and have recommended the Japanese government take full responsibilities for its past.

Only now has the United Nations Security Council passed Resolution 1820, which “constitutes rape and other forms of sexual violence as war crimes, crimes against humanity, or a constitutive act with respect to genocide.”

Unfortunately, most, if not all legal procedures (domestic and international) have been exhausted, and there is not a chance that the Japanese Government will meet any of the six demands[35] put forward by the wianbu halmonies.

Conclusion:

I am certain some scholars will agree that even in many prestigious academic institutions, museums, memorials, and media, the horrific memories of South East Asia are not shown as much as those in Europe. Sparse attention and critique is also the case with academic writing in International Law or history.

When I acknowledged this issue in one of my classes, the answer was: “You’ve got to remember that Asia only opened up 60 – 70 years ago. That’s relatively very young…it was a racist society,..…it’s sad to think, but they [the West] did not think Asians were equal…”[36].

I contend the opposite. German journalist and writer, Albrecht Furst von Urach made a sharp observation in his booklet in 1943 of the rise of Japan “to a world power during the past 80 years [as] the greatest miracle in world history. The mighty empires…the Spanish Empire, the British Empire, all needed centuries to achieve their full strength. Japan’s rise has been meteoric. After only 80 years, it is one of the few great powers that determine the fate of the world.”[37]

The IMTFE was perhaps an ostentatious portrayal of victors’ justice aimed for strategic, political purposes, rather than defining international law. However, the stance of the Japanese government towards this issue would not be the case if the perpetrating state was somewhat smaller and less powerful.


[1] “Comfort Women” were from Korea, China, Japan, Dutch East Indies, Indonesia, Philippines, Thailand, Vietnam, Malaysia, Taiwan and other Japanese-occupied territories.

[2] Ianfu (Japanese term: ??? ian, comfort + fu, woman),  wianbu (Korean term: ??? wian, comfort + bu, woman) both translate as “comfort women”. The term “military” in Japanese is pronounced as “jugun” and “jeonggun” in Korean. Koreans prefer to use “Jeongshing-dae halmonies” which means, “Volunteer corps grandmothers”[literally, ‘voluntarily offered body corps’], although the term wianbu is the most commonly used. In this paper, I shall refer to “comfort women” as wianbu halmonies (comfort women grandmothers) as it is used as a colloquial term in Korea. This address also shows a sense of empathy and understanding to the victims, and the use of halmony in Korea indicate a sense of ‘closeness’, as if she was your own grandmother.

[3] Chunghee Sarah Soh, “The Korean “Comfort Women”: Movement for Redress,”Asian Survey, Vol 36, No. 12, (Dec., 1996): 1227.

[4] Infra note 5, pp., 941.

[5] Pyong Gap Min, “Korean “Comfort Women”: The Intersection of Colonial Power, Gender, and Class”: Gender & Society, Vol. 17, No.6, (Dec., 2003): 940.

[6] Ustinia Dolgopol and Snehal Paranjape, Comfort Women: An Unfinished Ordeal, Report of a

Mission, International Commission of Jurists, (1994): 7.

[7] Keith Howard, “True stories of the Korean Comfort Women”: The Korean Council for Women Drafted for Military Sexual Slavery by Japan, (1995): v.

[8] Ibid note 5: 944. Min also cites that some Korean researchers (Chung 1997; Yun 1988, 1997) have even argued that the mobilisation of unmarried Korean women for sexual slavery was part of its policy to annihilate the Korean nation.

[9] Ibid note 5: 954.

[10] George Hicks, “The Comfort Women: Japan’s Brutal Regime of Enforced Prostitution in the Second World War”: (1995): 49.

[11] Systematic Rape, Sexual Slavery and Slave-like Practices during Armed Conflict, Update to final report submitted by Ms. Gay McDougall, UN Doc.E/CN.4/Sub.2/2000/21, paras. 269 – 284.

[12] This is actually a very mildly described summary of the conditions. The details of the horrendous experience of the victims transcend the infamous atrocities which occurred in “The Rape Nanking”. Dai Sil Kim-Gibson’s Silence Broken: Korean Comfort Women is a collection of interviews of many wianbu halmonies which gives a varied and detailed account of what had happened in different parts of South-east Asia, within this system. 

[13] Ibid note 5 :941.

[14] These include: The International Agreement for the Suppression of the White Slave Traffic of 1904, The International Convention for the Suppression of the White Slave Traffic of 1910 (reaffirmed in 1921), and The International Convention for the Suppression of the Traffic in Women and Children (1921).

[15] Article 1: “Whoever, in order to gratify the passions of another person, has procured, enticed, or led away, even with her consent, a woman or girl under age, for immoral purposes, shall be punished, notwithstanding that the various acts constituting the offence may have been committed in different countries.”

The International Convention for the Suppression of the White Slave Traffic of 1910

 < http://www1.umn.edu/humanrts/instree/whiteslavetraffic1910.html> , accessed 10th November, 2008.

[16]Article 14:  “Any Member or State signing the present Convention may declare that the signature does not include any or all of its colonies, overseas possessions, protectorates or territories under its sovereignty or authority, and may subsequently adhere separately on behalf of any such colony, overseas possession, protectorate or territory so excluded in its declaration. Denunciation may also be made separately in respect of any such colony, overseas possession, protectorate or territory under its sovereignty or authority, and the provisions of Article 12 shall apply to any such denunciation.”

[17] Amnesty International, “Still Waiting After 60 Years: Justice for Survivors of Japan’s Military Sexual Slavery System,” AI Index:ASA 22/012/2005, (Oct.,2005): 19.

[18] Ibid note 17:19.

[19] Article 23: Subject to and in accordance with the provisions of international conventions existing or hereafter to be agreed upon, the Members of the League:                                                    a) will endeavour to secure and maintain fair and humane conditions of labour for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend, and for that purpose will establish and maintain the necessary international organisations;                         b) undertake to secure just treatment of the native inhabitants of territories under their control;              c) will entrust the League with the general supervision over the execution of agreements with regard to the traffic in women and children, and the traffic in opium and other dangerous drugs;                       d) will entrust the League with the general supervision of the trade in arms and ammunition with the countries in which the control of this traffic is necessary in the common interest;                                  The Covenant of the League of Nations, art.23, para.b. cited in The Avalon Project, Yale Law School: Lillian Goldman Law Library, < http://avalon.law.yale.edu/20th_century/leagcov.asp>, accessed: 09th November 2008.

[20] Chunghee Sarah Soh, “The Korean “Comfort Women”: Movement for Redress,”Asian Survey, Vol 36, No. 12, (Dec., 1996): 1239.

[21] Ibid note 17:19.

[22] Ibid note 19: art.23, para.c.

[23] Jayasimha S, 'Victor's Justice, Crime of Silence and the Burden of Listening: Judgement of the Tokyo Tribunal 1948, Women's International War Crimes Tribunal 2000 and Beyond', (2001) Law, Social Justice and Global Development (LGD). <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_1/jayasimha/> : accessed : 27th October, 2008.

[24]Article 5 of the IMTFE Charter describe the terms as it follows:

Crimes against Peace: Namely, the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

Conventional War Crimes: Namely, violations of the laws or customs of war;

Crimes against Humanity: Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan.

< http://www.stephen-stratford.co.uk/imtfe_charter.htm> accessed: 06th November, 2008.

[25] Infra note 27: 159 - 160.

[26] No books, or research materials that I have encountered for this paper do not give any legal or background information or reasoning. However, I would imagine that as part of the Japanese colony, Korea would have been considered as a defeated nation. Thus, legally, it may have been in the same, also not equal position as Japan – only it was the victim of its atrocities.

[27] Ustinia Dolgopol and Snehal Paranjape, Comfort Women: An Unfinished Ordeal, Report of a

Mission, International Commission of Jurists, (1994): 134 – 136.

[28] George Hicks, “The Comfort Women: Japan’s Brutal Regime of Enforced Prostitution in the Second World War”: (1995): 270.

[29] Ibid note 24: 43 – 44.

[30] Y Yoshiaki, Comfort Women: Sexual Slavery in the Japanese Military During World War II. Columbia University Press, New York, (1995): 176.

[31] Ibid note 26: 270.

[32] Chunghee Sarah Soh, “The Korean “Comfort Women”: Movement for Redress,”Asian Survey, Vol 36, No. 12, (Dec., 1996): 1230.

[33] Ibid note 31:1229.

[34] Idem.

[35] 1. The Japanese government acknowledge the fact that {the military} forced Korean women to accompany troops as comfort women; 2. The Japanese Government Issue an official apology for these practices; 3. The Japanese government disclose all acts of brutality {committed by the government or military}; 4. A memorial to the people victimized be erected; 5. Survivors or their families be compensated; and 6. In order to prevent the recurrence of these wrongs, the facts be taught as part of history education.

Y Yoshiaki, Comfort Women: Sexual Slavery in the Japanese Military during World War II. Columbia University Press, New York, 1995, p. 34

[36] Quote based on recorded discussion during Lecture 5, of The United Nations and Other International Organisations.

[37] Albrecht Fürst von Urach ,”The Secret of Japan’s Strength”, (Translation of: Das Geheimnis japanischer Kraft Berlin: Zentralverlag der NSDAP, 1943). < http://www.calvin.edu/academic/cas/gpa/japan.htm > accessed: 11th November, 2008.


Seong Eun Jenny Lee is an MA candidate at the University for Peace.
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