Christine Chinkin - The Tokyo Tribunal 2000

By Christine Chinkin

The Prosecutors and the Peoples of the Asia Pacific Region v. Emperor Hirohito et al;

The Prosecutors and the Peoples of the Asia Pacific Region v. the Government of Japan

From 8 �12 December 2000 a Peoples� Tribunal, the Women�s International War Crimes Tribunal 2000, sat in Tokyo, Japan. It was established to consider the criminal liability of leading high ranking Japanese military and political officials and the separate responsibility of the State of Japan for responsibility for rape and sexual slavery as crimes against humanity arising out of Japanese military activity in the Asia Pacific region in the 1930s and 1940s.

The immediate background to the Tribunal was a series of events commencing in 1988 when the women's movement in the Republic of Korea began to learn of the research of Professor Yun Chung-Ok. For many years Professor Yun had investigated the brutal and relentless treatment women had received at the hands of the Japanese military in the so-called comfort stations that had accompanied Japanese military operations before and during the Second World War. Women�s organisations in South Korea sought the further details that soon emerged. Elderly women from across Asia began to speak out, in most cases breaking fifty years of silence in which they had suffered isolation, shame, in many cases extreme poverty, and often physical and mental ill health resulting from the injuries they had incurred. The first lawsuit for damages and compensation was filed in Japan in 1991. The issue was first raised at the Commission on Human Rights in 1992 and subsequently before other UN bodies. Public hearings were held in Tokyo and again at the Vienna World Conference on Human Rights in 1993. A research report by the International Commission of Jurists itemised these events, [1] examined documentary evidence, collected survivors' testimony and provided legal analysis.

The graphic accounts were at first met with denials from the Japanese government that there was any official involvement by the Japanese State in the establishment and operation of these facilities that were asserted to be the responsibility of private entrepreneurs. As the number of women coming forward increased, Japan gradually shifted its ground to make some limited acknowledgement and to express remorse. However Japan has continued to deny legal responsibility arguing, inter alia, that the women were prostitutes who had consented to their recruitment, that the Peace Treaties concluded in the 1950s, including the San Francisco Treaty with the allies and bilateral treaties with South Korea, Indonesia and the Netherlands had terminated all claims and that in any case individuals have no rights under international law to claim reparations. More lawsuits have been commenced in Japanese courts, to date with no success. The establishment by the Japanese government in 1995 - the fiftieth anniversary of the end of the Second World War - of the Asian Women�s Fund to be primarily financed out of private funding [2] has been divisive and has been criticised by survivors as failing to engage issues of legal responsibility. [3]

Frustrated by this lack of effective response and aware that time is running out for them, survivors have looked to other avenues for redress. The Tribunal arose out of the work of a number of women's non-governmental organisations across Asia. The organisers were motivated by a conviction that �these failures must not be allowed to silence the voices of the survivors, nor obscure accountability for such crimes against humanity. It was established to redress the historic tendency to trivialise, excuse, marginalise and obfuscate crimes against women, particularly sexual crimes, and even more so when they are committed against non-white women.� [4]

The organisers� vision in executing these objectives was dramatic. [5] Prosecution teams from nine countries presented indictments: [6] North and South Korea, China, the Philippines, Indonesia, Taiwan, Malaysia, East Timor and the Netherlands. This list alone encompasses swathes of colonial and cold war history. The shared experience of Japanese colonisation brought North and South Korean prosecutors together with a joint indictment � an expression of common purpose that continues to be unthinkable at the governmental level. The indictments from the North and South Korean, Taiwanese and Japanese prosecutors (with respect to Okinawa) showed how women in these colonised territories were regarded as at the disposal of the Japanese government and were transported to all places of Japanese military occupation. In other places the taking of women to facilities for sexual slavery accompanied military conquest and occupation. East Timor appeared before the Tribunal as a separate entity and explained that the story of Timorese comfort women has only begun to be revealed since the arrival of UNTAET. The European colonial past was recalled by the indictment arising out of the internment of Dutch civilians in Java (Dutch East Indies) and the removal of some of the youngest girls to comfort stations there. Two lead prosecutors (Patricia Viseur-Sellers [7] and Ustinia Dolgopol [8] ) joined the separate country prosecutors and presented a common indictment. The overall prosecution strategy was simple but subtle. Trials at the end of the Second World War with respect to the Japanese conduct of war, including the International Military Tribunal for the Far East, were incomplete in that they had inadequately considered rape and sexual enslavement and had failed to bring charges arising out of the detention of women for sexual services. Accordingly this Tribunal could be seen as an addendum to those earlier proceedings and the named indicted persons were those who had been earlier tried. There was one major exception: this Tribunal named the Emperor Hirohito as an accused.

For three long days the Tribunal heard prosecution statements supported by oral and documentary evidence. Over seventy-five survivors from the comfort stations were present and many gave evidence. Videos of interviews with many other survivors and affidavits were also submitted in evidence to the Court. Their testimonies built up a picture of 'recruitment' of women through force, kidnapping, coercion and deception. Women were then transported in Japanese army and navy vehicles to wherever the authorities ordered. Once confined in the facilities the women were exposed to lives of utter misery, fear and brutality. Removal from their home territories meant that they were isolated and made escape impossible. Their very names were changed to Japanese names, further denying their own identity. As the war closed with Japanese defeat, the women were abandoned, killed by the Japanese or killed by allied bombing. From those abandoned, some died, others returned home by various means while others remained permanently exiled from their homes. Evidence was also given on how the physical and mental effects of these harms had lasted throughout the survivors� lives and of the inadequacy of the Japanese government�s response. Telling phrases made apparent the causal link between what had been done to these women during Japanese military activity and their lifelong suffering: [9]

I don�t want to die as the ghost of a virgin: Mun Pil-gi, Korea.

We went back home and we were crying. We couldn�t tell anyone or we would be executed. It was so shameful so we dug a deep hole and covered it: Maxima Regala De La Cruz, The Philippines.

I lost my life. I was regarded as a dirty woman. I had no means of supporting myself and my job opportunities were extremely limited. I suffered terribly: Teng-Kao Pao-Chu, Taiwan.

In addition to survivors� testimony to the atrocities they had suffered, documentary and expert evidence was presented that linked those atrocities to the organs of the Japanese state and the Emperor Hirohito. At the end of the war Japan had destroyed many documents relating to the running of the war. Nevertheless researchers have unearthed relevant official documents that were submitted, [10] as well as memoirs and diaries from former military and civilian personnel. Their relevance was explained by experts on Japanese military and constitutional history and Japanese bureaucracy. More expert evidence was offered on, the structure of the Japanese army, international law, psychological and other trauma. Two former Japanese soldiers gave testimony on their involvement in and use of such facilities. Amicus briefs were presented that explained the progress of litigation in Japanese courts and told of a draft outline of a Law for Compensation for Victims of Wartime Forced Sex prepared by a Japanese Lawyers Association to provide a legislative framework for redress, if the political willingness to address the issues were to change.

Matters of concern to all involved were questions of fairness and credibility. Procedural constraints were strictly observed, for example the separation of judges and prosecutors and the entering and recording of all evidence through the Registry. The Japanese government was notified of the Tribunal on November 9 2000 and invited to participate. It did not respond to this invitation. In the spirit of the Statute of the International Court of Justice, article 53 the Tribunal sought to engage with Japan�s arguments for its denial of responsibility. The Tribunal therefore received briefs and evidence from Isomi, Suzuki, Koga and Partners, a Japanese attorney appointed as Amicus Curiae and Imamura Tsuguo, Attorney at Law setting out these arguments. It also considered other available sources, such as the decision of the Tokyo District Court denying responsibility for the Philippine comfort women.

After the closing of evidence and argument, the Judges [11] deliberated for a day and, assisted by a team of legal advisors, prepared a summary finding of fact and a preliminary judgment. This was presented on the closing day before a packed hall of over a thousand people. The preliminary judgment indicated that the Judges had found the Emperor Hirohito guilty of the charges on the basis of command responsibility. The evidence showed the comfort stations to have been systematically instituted and operated as a matter of military policy, that they constituted crimes against humanity under the law then applicable and that the Emperor knew, or should have known of them. The Judges also indicated that they had determined the State of Japan to be responsible under international law applicable at the time of the events for its violation of its treaty obligations and principles of customary international law relating to slavery, trafficking, forced labour and rape, amounting to crimes against humanity. Finally the Judges recommended a range of reparations and made other recommendations. A fuller judgment considering inter alia the guilt or otherwise of other indictees and providing more detailed legal analysis will be delivered in 2001.

What was the value of this exercise? Lacking legal authority was the Tribunal no more than a mock trial of little concern to serious international lawyers? I think not for a number of reasons. It is a striking example of the developing role of civil society as an international actor. It was not of course the first example of a Peoples� Tribunal and built upon earlier examples, such as the Vietnam war crimes trial instituted by Bertrand Russell in the late 1960s [12] and the permanent Peoples� Tribunal established in Italy in the 1970s by �private citizens of high moral authority� from a number of countries. [13] The latter Tribunal had a continued existence over a number of years and examined a series of alleged violations of international law to which there had been inadequate official response, including the Soviet military intervention in Afghanistan, that of Indonesia in East Timor and the genocide of the Armenians. Reports were published based on the findings of the Tribunal and the application of international law to those findings. The reports provide a valuable alternative source of evidence and jurisprudence around contested applications of international law. Other ad hoc tribunals have been held in specific countries around particular issues.

Peoples� Tribunals are premised on the understanding that �law is an instrument of civil society� [14] that does not belong to governments whether acting alone or in institutional arenas. Accordingly where states fail to exercise their obligations to ensure justice, civil society can and should step in. To ignore violative conduct is to invite its repetition and sustain a culture of impunity. That a Peoples� Tribunal can only exercise moral authority is due to the continued grip of the state on the formal institutions of international law. Such institutions are beginning to open to non-state actors, for example through the admission of amicus briefs and, in a few instances primarily in the area of expropriation, limited rights of standing. Legal response to atrocities has given rise to innovative international and national proceedings over the past decade including the war crimes tribunals and various models for truth and reconciliation. While it is admitted that a Peoples� Tribunal cannot provide the due process guarantees of a state-administered national or international court of law, this should not lessen its usefulness. There is no reason to question the veracity of evidence given under oath to global society any more than that given before a formal court of law. A Peoples� Tribunal cannot sentence or order reparations but it can make recommendations backed by the weight of its legal findings and its moral force. Universal condemnation of illegal acts should be recognised whether made under the aegis of States members of the United Nations or the �peoples of the United Nations.� Where there has previously only been silence and evasion this provides a form of public acknowledgment to the survivors that serious crimes have been committed against them. Such acknowledgement has been recognised as essential to redressing feelings of shame and guilt and providing healing and closure. A Peoples� Tribunal can thus combine in a single process elements of both war crimes trials and truth commissions. The diversity and complexity of the situations where atrocities are committed means there can be no single definitive response. Instead processes must be devised that are feasible and conducive to the achievement of justice in each particular situation. [15] Peoples� Tribunals can take their place in a range of approaches.

This Peoples� Tribunal was founded on such convictions, in the context of international peace agreements and formal methods of closure at the end of conflict. It represented a belief that states cannot through their political agreements and settlements ignore or forgive crimes against humanity that are committed against individuals. Three further characteristics however distinguish it from earlier Peoples� Tribunals. First it was held in Japan, the country against which indictments were brought. Second, it was a Women�s Tribunal and third it was established by grassroots organisers from within the victimised countries rather than by distinguished persons from outside. It focused upon crimes of sexual violence and slavery that have been routinely discounted in peace settlements and are thus effectively erased from the official records. In the same way earlier civil society initiatives have not focused upon gendered abuses. The reliance in the earlier Peoples� Tribunals upon well known persons from �cultural, legal and religious� life [16] did not ensure the inclusion of women�s voices (despite the presence of Simone de Beauvoir as a judge in the Bertrand Russell Tribunal). [17] In the 1990s social movements for the empowerment of women and for the greater promotion and protection of human rights have drawn together and through a range of initiatives have prompted some changes within national and international legal structures. [18] One such technique was that of public hearings on crimes of oppression and violence against women, including in armed conflict, for example at the Vienna World Conference on Human Rights and the Beijing Fourth World Conference on Women which sought to raise awareness of the extent and severity of gender-based violence. [19] The Tribunal goes further in combining consciousness raising with allocation of responsibility. It illustrates the value of devising strategies that combine traditional women�s organising methodologies of networking, consciousness raising and alliance building with procedural initiatives that have already acquired legitimacy within civil society.

There are other points of note about the Tribunal. First, freed from the restraints of State mechanisms for international adjudication the organisers were able to design the Tribunal uniquely to give effect to the dual objectives of assigning individual criminal culpability and state responsibility for wrongful acts under international law and the duty to accord reparation for such wrongful acts. The issues of victim rights and reparations for atrocities committed have come to the fore in the context of the Tribunals for the Former Yugoslavia and Rwanda and around the negotiations for the International Criminal Court. Orders for compensation under the Rules of Procedure and Evidence of the International Tribunal for Former Yugoslavia and Rwanda, Rule 106 have not been made, but are in any case limited to individual redress. They do not envisage other forms of reparation such as ensuring domestic education and the establishment of memorials. Where the state has responsibility for such atrocities it should satisfy the obligation to make reparation, in appropriate forms whatever individual criminal culpability is also determined.

Second, is the importance of the collection and compilation of the historical record. In the last decades there has been an explosion of multiple forms in the collection of data with respect to human rights abuses that can repudiate the versions of events offered by states. The record with respect to the women used for sexual services by the Japanese military was beginning to emerge across the range of countries and through a number of these diverse forms � personal accounts, [20] �mainstream� NGO reports [21] and those of UN Special Rapporteurs and agencies. [22] The Tribunal supplemented these records with historical data and expert evidence. For example, through his extensive researches Professor Yoshimi has located many previously unknown documents from the various Japanese Ministries. Researchers across Asia and elsewhere found still more documents that were made available to the country prosecutors. From such documents � demands for women to be sent to military garrisons, orders for their shipments, transport details, the operational details such as medical inspections, ticketing systems and timetables - the perpetrators� perspective begins to emerge to provide a more complete picture of the extent and institutionalisation of the comfort woman system as integral to the Japanese war machine. They show that rape as practised in the comfort stations was not an inevitable consequence of war, nor even an instrument of war but was part of the very engine of war where the sexual enslavement of women was considered necessary to the pursuit of military objectives. The Women's Tribunal culled together an exceptional array of evidence that surpasses that collected by many of the previous investigations and will reach its conclusions with a more thorough examination of the applicable law in its historical context than was possible for them. This makes the �exercise� of this unofficial Tribunal at least as relevant if not more weighty than those carried out by more regularly recognized forms of denunciation.

Third, and flowing from this, the Tribunal allowed consideration of the effect of militarism and military objectives on gender relations. Its analysis showed the impact of the ethos of the subordination of the will and personality of the individual (male) soldier to complete obedience and loyalty to the Japanese military machine. This culture deprived soldiers of their human rights, denied self-identity, oppressed individuality and demanded absolute obedience on treatment of women whose bodies were made available to service men�s sexual needs. While the circumstances and context of the Japanese system of military sexual slavery were unique we can nevertheless learn important lessons about the continuing linkages between militarism and sexist attitudes that contribute to sexual abuse, for example through rape and sexual harassment associated with military bases and the heightened levels of domestic violence in immediate post-conflict societies.

Fourth, the proceedings also provided the setting for legal analysis that both looked back to the law in 1945 where explicit reference to sexual abuses was minimal [23] and looked forward to show how our current understanding of the ways women are subjugated to and abused by policies that they have played no role in formulating nevertheless come within those proscriptions. Thus enslavement, forced labour and trafficking were prohibited in international law by the time of these events. So too was rape. [24] Confining women for the sole purpose of sexual service at the bidding of military personnel deprives them of the rights of ownership to their bodies � the embodiment of slavery. Further, since no one can consent to being enslaved, the issue of consent or otherwise to the sexual activities is exposed as the irrelevance it is.

Finally, a constant theme throughout the testimony was that the pain of women who were the survivors of sexual violence was exacerbated by their rejection when they returned to their own communities. They were forced to suffer in shame and silence because of the prevailing sexist attitudes that saw them as somehow responsible for their own tragedies. It is hoped that the Tribunal will contribute to the appropriate attribution of responsibility and assist in changing the worldwide pattern of sexual stereotyping that continues to be pervasive today.

Christine Chinkin, Board of Editors, Judge the Women�s International War Crimes Tribunal 2000 for the Trial of Japanese military Sexual Slavery.

[1] International Commission of Jurists, Comfort Women An Unfinished Ordeal. Report of a Mission, ISBN 92 9037 086-6, p 11-4

[2] ALTERNATIVE APPROACHES AND WAYS AND MEANS WITHIN THE UNITED NATIONS SYSTEM FOR IMPROVING THE EFFECTIVE ENJOYMENT OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, Report of the Special Rapporteur on Violence against Women, its causes and consequences, Ms Radhika Coomaraswamy, submitted in accordance with Commission Resolution 1997/44, UN Doc E/CN.4/1998/54, 26 January 1998, 12.

[3] YAYORI MATSUI, WOMEN IN THE NEW ASIA 1996, 168.

[4] The Women�s International War Crimes Tribunal 2000 for the Trial of Japanese Military Sexual Slavery, Summary of Findings and Preliminary Judgment, 12 December 2000.

[5] The International Organising Committee comprised the Japanese Organizing Committee (represented by Yayori Matsui), Organizations of 6 Victimized Countries/Areas (represented by Yun Chung-Ok) and an International Advisory Committee (represented by Indai Sajor, Asian Center for Women�s Human Rights).

[6] The word �country� is used advisedly. East Timor is not yet an independent state and the international legal status of Taiwan is contested.

[7] Prosecutor, International Criminal Tribunal for the Former Yugoslavia.

[8] Senior Lecturer, Flinders Law School, South Australia.

[9] Quotes taken from The Women�s International War Crimes Tribunal 2000 for the Trial of Japanese Military Sexual Slavery, Summary of Findings and Preliminary Judgment, 12 December 2000; see http://www1.jca.apc.org/vaww-net-japan/en/Dec2000/tribunal.html.

[10] In 1992 Professor Yoshimi, a Japanese historian first published his findings of historical documents that showed Japan's role in the comfort stations.

[11] Judge Gabrielle Kirk McDonald, formerly President International Criminal Tribunal for the Former Yugoslavia; Judge Carmen Maria Argibay, President of the International association of Women Jurists; Judge Dr Willy Mutunga, a human rights lawyer from Kenya and the author. Judge Bhagwati, former Chief Justice of the Indian Supreme Court was unfortunately prevented from attending by ill-health.

[12] AGAINST THE CRIME OF SILENCE: PROCEEDINGS OF THE INTERNATIONAL WAR CRIMES TRIBUNAL (John Duffet ed., 1970). The Tribunal met in three sessions in 1966-7 to consider United States responsibility for war crimes and genocide in Vietnam.

[13] RICHARD FALK, The Rights of Peoples (in particular Indigenous peoples) in THE RIGHTS OF PEOPLES (James Crawford, ed, 1988) 17 at 28.

[14] Ibid. at 29.

[15] NAOMI ROHT-ARRIAZA, The Need for Moral Reconstruction in the Wake of Past Human Rights Violations: An Interview with Jose Zalaquett in HUMAN RIGHTS IN POLITICAL TRANISITIONS: GETTYSBURG TO BOSNIA (Carla Hesse and Robert Post, eds, 1999) .

[16] RICHARD FALK, above 13 at 28.

[17] See HILARY CHARLESWORTH AND CHRISTINE CHINKIN, THE BOUNDARIES OF INTERNATIONAL LAW: A FEMINIST ANALYSIS (2000), 90-93.

[18] CHRISTINE CHINKIN, Human Rights and the Politics of Representation: is there a Role for International Law in THE ROLE OF LAW IN INTERNATIONAL POLITICS (Michael Byers, ed, 2000) 131.

[19] For an earlier example see CRIMES AGAINST WOMEN: THE PROCEEDINGS OF THE INTERNATIONAL TRIBUNAL (Diana Russell, ed, 1976, rep. 1984).

[20] JAN RUFF, FIFTY YEARS OF SILENCE.

[21] International Commission of Jurists, above note 1.

[22] Report of the Special Rapporteur on Systematic rape, sexual slavery and slavery-like practices, Gay J McDougall, to the UN Economic and Social Council E/CN.4/Sub.2/1998/13, 22 June 1998.

[23] Of the trials following the Second World War the Temporary Court-Martial in Batavia in the case of the Judge-Advocate ratione officii versus 12 unnamed defendants No 72/1947 (the 'Batavia Judgment') discusses the forcible removal of Dutch women to what are referred to as military brothels for the purposes of prostitution. The fact that this trial considered the fate of European women illustrates the underlying racism as well as sexism then prevalent.

[24] PATRICIA VISEUR SELLERS, The Context of Sexual Violence: Sexual Violence as Violations of International Humanitarian Law, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW. THE EXPERIENCE OF INTERNATIONAL AND NATIONAL COURTS VOLUME 1 COMMENTARY, (G Kirk McDonald and O Swaak-Goldman, eds, 2000).