Breaking the Silence: A Path to Redress for Comfort Women

Seventy-six years after World War II (WWII), the world is still trying to soothe the wounds of those affected by the tragic manifestations of evil that the world witnessed during that time. While justice delayed does not always imply justice denied,[1] sexual violence during the war has, to this day, not been adequately addressed. One clear illustration thereof is the case of Japan’s so-called ‘comfort women’, a large-scale instance of sex slavery conducted from 1932 to 1945 by the Japanese Imperial Army within its occupied territories. After decades of denial from the Japanese government, this issue has come to light in the 1990s, when Kim Hak-sun’s testimony of her experience as a comfort woman was made public. Shortly after, Professor Yoshimi Yoshiaki unveiled documents found in the Japanese Self-Defense Agency that clearly proved the link between the Army and the established so-called comfort stations.[2] Further documents were disclosed, coming from either official sources, in the form of official authorizations coming from Emperor Hirohito himself,[3] or unofficial sources, such as the diaries of high-ranking officials,[4] that managed to prove beyond reasonable doubt that the authorities in Japan were well informed about and also involved in the establishment, regulation, and monitoring of the comfort stations.

Despite all this available information, to this day, comfort women have not received adequate reparations for the coercion, dehumanization, and abuse they faced.[5] This article aims to first provide a background of the case of the comfort women. Then, it will analyze the transitional justice mechanisms applied so far by the Japanese government, assessing their effectiveness. Lastly, it will provide recommendations for further immediate and long-term conduct in light of the successes and failures of previous attempts. The guiding question of this article is: How can Japan best respond to the needs of comfort women within its socio-political context?

Background of the Case

While Japan burned a significant number of documents to absolve itself of any responsibility in relation to comfort women, estimates say that around 200.000 women from Japan’s occupied territories became part of the comfort women system during WWII.[6] Although started in 1932, this gruesome project gained momentum in 1937, after the Rape of Nanking, in which 20.000 women were abused by the Japanese troops.[7] The Confucian society that was most prominent in the occupied territories regards chastity as a primary value, considering any type of extramarital sexual relation as promiscuous. Contrarily, sexual intercourse was perceived by the Japanese military as an essential good, particularly prior to combat, as it allegedly protected them against injury.[8] Thus, rape became one sensitive subject related to the Imperial Army which had to be solved to preserve Japan’s reputation in front of the population residing in the occupied territories in order to avoid civil unrest. Thus, Japan decided to create a system of camps in which the troops could satisfy their sexual needs in a controlled environment.[9]

Despite the purported initial good intentions, the term ‘comfort’ hides the nature of the atrocities happening in those camps. Several witness accounts uphold the idea that the victims were mostly underage, not even fulfilling the threshold for legal prostitution.[10] Strikingly, they also reveal the fact that some of the victims were as young as eight years old.[11] Adding to that, the tactics used to recruit these women were highly problematic, including “kidnapping women in military raids; luring women to follow recruiters voluntarily through false promises of lucrative jobs in other fields, such as nursing or factory work; and compulsorily conscripting women from civilian internment camps in the occupied territories”.[12] What made the selected women particularly vulnerable to these schemes of recruitment, aside from their young age, was that most of them came from poor backgrounds, being often uneducated, and desperately looking for a way to earn their income.

The reality that they were presented with once having reached the camps was that they were forced to provide sexual services to military personnel. In 1940, the regulations that were implemented assigned one comfort woman to every hundred soldiers,[13] having to perform their sexual services daily, without exceptions. Leaving was not an option, as they were under strict surveillance and all attempts would be severely punished, some women even paying with their lives.[14] Refusal to perform sexual services or poor performance usually led to prolonged instances of torture.[15] While some of those who deny the atrocities claim that none of these accusations can be held true, because these women were paid for their services, recent evidence shows that, although they were promised money, those who might have received some payment had to deposit their savings in military accounts which got confiscated by the Japanese government once the war ended.[16] As such, there is no doubt that the comfort stations were venues for human trafficking where sexual slavery was institutionalized and regulated by the Japanese Imperial Army. The coercive process of recruitment that took advantage of the vulnerability of the girls that were selected speaks for a lack of consent on the side of the victims in regard to the performance of these services. The physical abuses, rape, and involuntary confinement in the camps clearly show systematic mistreatment of the ‘comfort women’ under the auspices of state-ran comfort stations.

Despite all this evidence, once the war ended, these women were abandoned by society. Lots of the women could never reintegrate and the states did not offer them any assistance until the 1990s when the issue resurfaced, considering them as mere sex workers that willingly provided their services to the Japanese troops.[17] While some of the victims were able to marry and lead decent lives, many were overwhelmed by their traumatic experiences. Some, despite wanting children, could not have them due to the physical damage they suffered while being in the camps. Some died in poverty, and some have never even attempted to make their voices heard, fearing societal rejection.[18] Since the discoveries of the 1990s, Japan unsuccessfully tried to provide just reparation for these women. The next section will analyze in more depth how Japan approached this issue in the post-war period and until the present.

What did Japan do so far?

The post-war scene was marked by attempts to provide societies with justice, hold the perpetrators accountable, establish the truth about the atrocities, provide adequate reparations, and reconcile the affected societies through guarantees of non-repetition. Transitional justice can be split into two large, although not mutually exclusive categories: retributive justice, focusing on bringing perpetrators to courts, and restorative justice, which can most prominently take the form of either truth and reconciliation commissions or official apologies.[19] Yet, sexual violence has only received modest attention internationally until the 1990s in the International Tribunals for Rwanda and Yugoslavia.[20] Nevertheless, formal justice has not provided any good results for the victims in this case and is not likely to do so in the future.

Establishing Courts

To this day, wartime rape is “seldom prosecuted and rarely denounced”, and often considered just a “byproduct of wartime activity”.[21] This view is reflected also in the poor attention given to sexual violence during the International Military Tribunal for the Far East (“Tokyo Tribunal”). While referring to the Nanking Rapes as an atrocity, the tribunal did not address the issue of comfort women. Therefore, no legal responsibility was assigned to Japan for this particular harmful conduct during the war. The signing of the San Francisco Peace Treaty in 1951 meant to solve all the remaining issues between Japan and its former occupied territories, waived any potential claims for further reparations, completely excluding the issue of comfort women from any current and future peace and reparations negotiations.[22]

Due to the stigma attributed to being a comfort woman, it was not until the 1990s that this issue surfaced in public discussions. Following Kim Hak-sun’s confessions, many women gained the courage to come forward and have their stories heard. It is well known that both their international, as well as their domestic litigations, got dismissed based on a lack of direct evidence to link these women to the act of sexual slavery, or, most notoriously, through the invocation of Japan’s sovereign immunity in foreign courts. This was the leading motivation in both South Korea,[23] as well as in the United States.[24] While crimes against humanity normally establish universal jurisdiction, meaning that all states can judge a party accused of such crimes,[25] the intricacies of state sovereignty in international law made this case impossible to judge. Multiple scholars argue that diplomatic interests have dominated over the interests of the victims in approaching this issue in foreign courts, leading to no assessment of legal responsibility for Japan.[26] When it comes to domestic courts, it is argued that the social bias against these women influenced the rulings of the courts to their detriment. This issue becomes most evident when, after the establishment of the Independent Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery (“Women’s Tribunal”) to complete the missing part of the ruling of the Tokyo Tribunal, none of its recommendations were put into practice. Still, its findings demonstrated liability for the Emperor and some of the high military officials for the establishment and running of this sex-slavery enterprise that harmed hundreds of thousands of women. Nevertheless, as it was an unofficial tribunal, all these discoveries did not play any practical role.[27] As time goes by, both the victims and the perpetrators die, substantially decreasing the likelihood to establish legal responsibility for Japan. Moreover, diplomatic interests make the likelihood of an international adjudication extremely unlikely.

Truth and Reconciliation Commissions

While formal mechanisms to provide justice seem impractical for the case at hand, transitional justice offers other mechanisms that can provide victims with satisfactory results. All attempts to create Truth and Reconciliation Commissions failed in Japan.[28] These commissions, although sometimes successful, as was the case in South Africa, usually come to being with the support of the state. These collect information from the affected population, establishing a common truth about the situation and reconciling the victims and the perpetrators.[29] In this case, justice has been delayed for such a prolonged period of time that it has become practically impossible to gather information from the population in order to establish the authoritative record that usually results from such endeavors.[30] Aside from this practical issue, research conducted on truth telling in Rwanda proves that the risk of re-traumatization is extremely heightened among victims of sexual violence, endangering the mental health and well-being of the women that would participate in the process.[31] The toll that such a confession puts on victims is illustrated in this case by the fact that, from the estimated 200.000 total victims, only about 200 have come forward to tell their stories.[32] Moreover, as truth and reconciliation commissions focus on creating a state narrative for the issue, it is often that agency is taken away from them and their suffering, and the focus shifts to rather abstract notions as it is, for instance, the issue of comfort women staining the social fabric of the nation, bringing shame to Japan.[33] Therefore, truth and reconciliation commissions would ultimately do more harm to the victims and their needs under these circumstances.

Apologies

Japan, so far, has failed to perform a complete apology, despite this being the most requested form of redress. In the specialized literature, a complete apology establishes and acknowledges the facts of the case by consensus with the narrative of the victim, in a way in which it does not obscure the reality of the perpetrations or unjustly mitigate the harm. The apologizer must have standing in the issue so that his promises are perceived as sincere, empathetic, and respectful towards the recipients of the apology. The apologies should serve to reassure the victim that the events would not be repeated, that they are safe in the current society, and that the perpetrator fully comprehends the harm that they have caused. These apologies can be combined with symbolic material reparations, but this matter should be handled with care so that the money that comes with the apology is not associated with blood or hush money, meant to silence the victims.[34]

In 1993, after Professor Yoshiaki unearthed the documents revealing the Army’s direct involvement in the comfort women issue, Japan issued the Kono Statement in which it admits to the direct involvement in the military and partially concedes to the coercive process of recruitment, as well as to the abuses that took place in the stations. While this represents good progress from the denial that usually dominated the public discourse until then, Japan still does not accept full liability. The establishment of the Asian Women Fund meant to provide the victims with compensation has been regarded as insufficient, as it was, ultimately, not the government, but a private organization that was largely dependent on non-governmental funds that bore the responsibility to provide the victims with compensation.[35] The half-hearted apology, together with compensation that was not regarded as official, as it did not come directly from the government, led lots of victims to feel like their needs were dismissed. Although multiple apologies from state officials came in the aftermath, including an agreement in 2015 between South Korea and Japan that was supposed to definitively solve the issue, the lack of sincerity and adequacy of the apologies left the victims unsatisfied. This led to more backlash from the right-wing part of society, having prime-minister Abe declare an ‘apology fatigue’ and claiming that there is ultimately no proof to show that these women were coerced into this activity.[36] This is reflected also in pressures from the Japanese officials both at home and abroad to remove the statues in the memory of comfort women from their premises and blocking all memorials all over the globe, as they hurt the dignity of Japan. They also vouched for the complete removal, domestically, of the mentions of the comfort woman problem from all educational material, including history books.[37] As such, the apologies conducted to this day can be considered inadequate and insufficient.

What can be done?

The Women’s Tribunal, various NGOs established by and for the victims, the United Nations, and the European Union all seem to have demands that ultimately come down to the following ones:

• The Japanese state should, first and foremost, provide the victims with an apology. This is the demand that has most often come forward from the victims and was never adequately accomplished. It is also considered to be the most effective remedy for the wounds caused by the Imperial Army to the Comfort Women.[38] Considering the abovementioned criteria for a complete apology, the state should establish an official narrative that is compliant with the facts established by historians, scholars, and victims in regard to the role that Japanese officers played in coercing and abusing the comfort women. Apology fatigue is an inexcusable statement coming from state officials. Considering the old age of the victims, as well as the disrespect they have faced throughout time in regard to their suffering and acknowledging the wide availability of materials that by now effectively prove the coercion involved in the process of selecting the victims, as well as the sexual abuse that took place, an immediate apology is deemed as the best remedy which can be offered in due time to the victims and their families. Nonetheless, what is most crucial is involving the victims and their representatives in the decision-making process, as, so far, they have been excluded from the important decision-making processes.[39]
• Establishing the grounds for an adequate formal apology would help create a final national narrative that is satisfactory to the victims and does justice to their stories. Thereby, the state can fulfill the demand of the victims to be commemorated in history books and through memorials. Erasing the history and pressuring the international community to do the same is, ultimately, more detrimental to Japan’s pride than acknowledging the harm done. Victims have often claimed that the education of further generations is the best guarantee of non-repetition.[40]
• Lastly, although the Asian Women Fund has provided compensation to the victims that desired to accept the atonement money, the government should launch its own platform of providing compensation directly and officially to the victims, their communities, and their families, as a final symbol that Japan has accepted its fault in the matter.

Only through the establishment of a clear narrative can Japan apologize, solve domestic disputes as to the coercion of the women into becoming sex slaves to the military and provide victims with just reparations. The window of opportunity is very small, as the victims are very old, but taking rapid and effective action with all the means available should, once and for all, settle the dispute and start the healing and reconciliation process, admitting that Japan once had a state-led system of human trafficking which it now regrets.

[1] David Taylor, ‘Beyond the Courtroom: The Objectives and Experiences of International Justice at the Grassroots’ in Peter Malcontent (ed), Facing the past. Amending historical injustices through instruments of transitional justice (intersentia 2016).

[2] Sue R. Lee, ‘Comforting the comfort women: Who can make Japan pay’ (2003) 24 UPJIE 509.

[3] Afreen R. Ahmed, ‘The shame of Hwang v. Japan: how the international community has failed Asia’s comfort women’ (2004) 14 TJWL 121.

[4] Nicola Henry, ‘Memory of an injustice: the “Comfort Women” and the legacy of the Tokyo trial’ (2013) 37 ASR 362.

[5] Thomas J. Ward and William D. Lay, Park Statue Politics. World War II Comfort Women Memorials in the United States (E-IR Publishing 2019).

[6] Amnesty International, ‘South Korea: Disappointing Japan ruling fails to deliver justice to ‘comfort women’ (7 January 2022) <https://www.amnesty.org/en/latest/news/2021/04/south-korea-disappointing-japan- ruling-fails-to-deliver-justice-to-comfort-women/> accessed 4 May 2022; Gabriel Jonsson, ‘Can the Japan-Korea Dispute on “Comfort Women” be resolved?’ (2015) 46 KO 489.

[7] Ahmed (n 3).

[8] George Hicks, The Comfort Women: Japan’s brutal regime of enforced prostitution in the Second World War (1^st ed, W.W. Norton and Company 1997).

[9] May-Ann Castillo Mercurio, ‘Unrepaired Wrongs: The Case Study of the Comfort Women’ (Bachelor’s Thesis, University of Hull, 2021).

[10] Mina Chang, ‘The politics of an apology: Japan and resolving the comfort women issue’ (2009) 31 HIR 34.

[11] Julie McCarthy, ‘Photos: Why these World War II sex slaves are still demanding justice’ National Public Radio (Washington, 4 December 2022) <https://www.npr.org/sections/goatsandsoda/2020/12/04/940819094/photos-there-still-is-no-comfort-for-the-comfort-women-of-the-philippines?t=1651217707627> accessed 15 August 2023.

[12] Ahmed (n 3) 124.

[13] Yuji Hosaka, ‘Why did the 2015 Japan-Korea ‘Comfort Women’ Agreement Fall Apart’, The Diplomat (18 November 2021).

[14] Jimin Kim, Beverly Milner Lee Bisland and Sunghee Shin, ‘Teaching about the Comfort Women during World War II and the Use of Personal Stories of the Victims’ (2019) 24 EAA 3.

[15] Ward and Lay (n 5).

[16] Hicks (n 8).

[17] Muta Kazue, ‘The ‘comfort women’ issue and the embedded culture of sexual violence in contemporary Japan’ (2016) 64 CS 620.

[18] McCarthy (n 11).

[19] Peter Malcontent and Stephen Parmentier, Facing the Past. Amending Historical Injustices through Instruments of Transitional Justice (intersentia, 2016).

[20] Ahmed (n 3).

[21] Nancy Farwell, ‘War rape: New conceptualizations and responses’ (2004) 19 A 389.

[22] Ahmed (n 3).

[23] Hosaka (n 13).

[24] Ahmed (n 3).

[25] Amnesty International, ‘Universal Jurisdiction: The duty of states to enact and enforce legislation: Chapter 9: Torture: The legal basis for universal jurisdiction’ (Amnesty International, 4 May 2022) <https://www.amnesty.org/en/documents/ior53/012/2001/en/?OpenDocument> accessed 15 August 2023.

[26] See Lee (n 2), Ahmed (n 3) etc.

[27] Lee (n 2).

[28] Tomomi Yamaguchi, ‘Japan’s Right-Wing Women and the Comfort Women Issue’ (2020) 6 GJAA 45.

[29] Stephan Parmentier in Monica Aciru, ‘The whole truth and nothing but the truth? On the role of truth commissions in facing the past’ in Peter Malcontent (ed), Facing the past. Amending historical injustices through instruments of transitional justice (intersentia 2016).

[30] McCarthy (n 11).

[31] Karen Brounéus, ‘Truth-telling as talking cure? Insecurity and retraumatization in the Rwandan Gacaca courts’ (2008) 39 SD 55.

[32] Roman David, ‘The past or the politics of the present? Dealing with the Japanese occupation of South Korea’ (2016) 22 CP 57.

[33] Alice MacLachlan, ‘Gender and public apology’ (2013) 1 JR 6.

[34] Rhoda E. Howard-Hassmann, ‘Official Apologies’ in Peter Malcontent (ed), Facing the past. Amending historical injustices through instruments of transitional justice (intersentia 2016).

[35] Esther Song, ‘Just reparations for Korean ‘Comfort Women’: A transitional justice and international law perspective’ (2021) 20 JKL 373; Sarah C. Soh, Japan’s National/Asian Women’s Fund for Comfort Women’ (2003) 76 PA 209.

[36] McCarthy (n 11).

[37] Agnes Constante, ‘Who are the ‘comfort women’, and why are U.S.-based memorials for them controversial’ (NBC News, 7 May 2019) <https://www.nbcnews.com/news/asian-america/who-are-comfort-women-why-are-u-s-based-memorials-n997656> accessed 15 August 2023; Ward and Lay (n 5).

[38] David (n 32).

[39] Song (n 35).

[40] Rin Ushiyama, ‘Comfort women must fall? Japanese governmental responses to comfort women’s statuses around the world’ (2021) 14 MS 1255.