Japan shirking legal responsibilities for sexual slavery

By Korea Herald
  • Published : Aug 31, 2014 - 21:21
  • Updated : Aug 31, 2014 - 21:57
The following is the fifth in a series of articles on Japan’s wartime sexual enslavement of Asian women on the occasion of the 61st anniversary of the foundation of The Korea Herald on Aug. 15. ― Ed.

From apologizing for its wartime sexual slavery to setting up a civilian atonement fund, Japan has sought to relieve itself of moral responsibilities for the atrocities. But these efforts have backfired as it has shirked its legal responsibilities for the human rights violations.

Since the early 1990s, Korean victims, who were forced to serve at frontline brothels during World War II, have persistently demanded that Japan squarely face up to its history, offer sincere apologies and address its legal liabilities.

Yet, Tokyo has repeated its argument that there is no clear evidence that the Japanese government was directly involved in the forcible recruitment, transportation and management of the sex slaves, who Japan calls “comfort women.”

“Japan appears to believe that should it take legal responsibility when it thinks war claims have been resolved with countries including China, it would damage the critical foundation of its postwar settlements,” said Lee Won-deog, a Japan expert at Kookmin University.

“This, I would say, is a narrow-minded way to construe the legal compensation for the comfort women.”

Japan insists that even if there were legal responsibilities for it to bear, all colonial-era issues between Korea and Japan have been resolved under a 1965 bilateral treaty, and that other war-related claims were settled under the San Francisco Peace Treaty, Japan’s 1951 postwar settlement with allied powers, and other past agreements.

Japan has also denied that it had violated international humanitarian law at the time when its Imperial Army ran the “comfort stations,” as no relevant law existed then. It also says war-related laws were applicable only to belligerents, not colonized countries. Korea was colonized by Japan from 1910-45.

Differing interpretations of Korea-Japan treaty

Seoul and Tokyo remain poles apart over the interpretation of the 1965 bilateral treaty that enabled the normalization of their relations. Their irreconcilable differences have been reaffirmed, having made little progress over the sex slave issue in their several rounds of director general-level talks this year.
Kim Bok-dong (seated), a victim of Japan’s wartime sexual slavery, and activists hold a rally to call on the Park Geun-hye administration to increase efforts to settle the “comfort women” issue, in front of Cheong Wa Dae on Friday. (Yonhap)

Tokyo has not budged on its stance that all bilateral issues concerning its colonization of Korea were settled under the “Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Cooperation between Japan and Republic of Korea.” Under the deal, Japan provided Korea with $300 million in free grants and $200 million in loans.

Taking an unapologetic stance, Tokyo has cited Article II of the agreement, which states the problem concerning property, rights and interests of the two contracting parties and their nationals has been settled “completely and finally.”

But Seoul claims that the agreement was designed to only settle financial property-related civil claims, which originated from Korea’s liberation from Japan’s colonial rule, and that the agreement did not deal with violations of individual human rights resulting from war crimes.

“At the time of the negotiations over the bilateral pact, the comfort women issue did not even exist. It was only in the 1990s that victims and civil society started to speak up about the issue,” said Jo Yang-hyeon, a professor at the Korea National Diplomatic Academy.

“Thus, Seoul believes that the wartime rights issue should be handled separately and looked at anew, but Japan insists that all issues are comprehensively covered under the bilateral pact.”

Experts say that it is important to understand how the pact was established to prove that it was not meant to cover Japan’s responsibilities for its sexual enslavement of Korean women and other crimes against humanity.

They point out that the pact focused mostly on the bilateral economic cooperation, a reason why the then-Seoul government, which was pushing for economic development, agreed to sign the pact despite domestic opposition.

As the U.S. encouraged Japan to reconcile with the South to strengthen its alliance network against the former Soviet Union during the Cold War, Japan sought to settle property claims with the South in the form of economic cooperation, normalize relations with its onetime colony and fuel its continued economic rise.

Given these circumstances, experts believe that the bilateral pact did not take into consideration legal compensation issues for Japan’s wartime wrongdoings.

“Before the pact was signed, Seoul handed over to Tokyo a document detailing issues to be covered under the pact. In that document as well as the pact, there was no mention at all of the comfort women issue,” said Lee of Kookmin University.

“Japan interprets the pact in broad, comprehensive terms, arguing that all issues were settled under it. But we can hardly accept that interpretation.”

Seoul has been more active in resolving the comfort women issue since the Constitutional Court ruled in 2011 that it was unconstitutional for the government not to have made proactive efforts to resolve the issues surrounding the victims.

Seoul has since proposed talks with Tokyo to settle the issue and is stressing that it is a wartime human rights issue that goes beyond bilateral relations. Since early this year, the two countries have held the director general-level talks to seek solutions to the issue.

Observers say that it is unlikely that the conservative Shinzo Abe government would accept legal responsibility for the sexual slavery due in part to domestic politics.

“As we witnessed, public support for the Democratic Party of Japan dipped due in part to its unpopular foreign policy,” said Jo of the Korea National Diplomatic Academy. “With domestic politics and nationalism (holding sway), we can hardly expect any Japanese political leader, particularly under the current government, to make concessions over the comfort women issue.”

Lee echoed Jo’s view, saying, “When conservatives in Japan are arguing that the claims about comfort women were fabricated or vastly exaggerated, what would happen if Tokyo accepted its legal responsibility?”

Experts also noted that even though officials from both governments have engaged in intense talks over the issue, the officials’ options are limited as the public is opposed to any diplomatic concessions and politicians are reluctant to compromise.

Through several statements, Japan apparently accepted moral responsibility for the existence of the comfort women. In 1993, then-Chief Cabinet Secretary Yohei Kono admitted the existence of comfort stations and the direct and indirect involvement of the Japanese military in the establishment and management of the stations.

Japan also set up the so-called Asian Women’s Fund in 1995 to offer “atonement money” to former comfort women. Financed by civilian donations, the fund was intended to quiet down criticism of the wartime atrocities. But it was dissolved as the victims called for “legal” reparations and apologies, not just financial compensation.

Denial of international law violations

Japan has argued that the sexual slavery system, which was in operation from 1932 to the end of World War II in 1945, did not contravene international law, arguing that the relevant laws did not exist at the time.

In particular, it argues that rape was not a war crime until after 1949, when the Geneva Convention established the standards of international law for the basic rights of prisoners and protections for the wounded and civilians in and out of war zones.

But experts argue that some aspects of international humanitarian law are part of international customary law, and that a country might be responsible for violations of humanitarian principles regardless of whether it is a signatory to a particular convention.

“There is a wealth of evidence that the crimes were covered by customary international law for the duration of the system of sexual slavery operated by Japan,” said Kim Hee-jin, director of Amnesty International Korea.

Experts note that the 1907 Hague Convention, which Japan ratified in 1911, stresses that “family honor” must be respected. Infringement of family honor was referred to as rape, enforced prostitution or any form of indecent assault in the Geneva Convention. Legal pundits also say that incidents of rape during World War II were regarded as war crimes in many cases, including at the military tribunal for the Far East.

Apart from the rape issue, experts say that Japan violated international treaties banning slavery and the sex trade, which it had ratified well before the systematic operation of comfort stations at frontline units.

Japan ratified the 1910 International Agreement for the Suppression of the White Slave Traffic and the 1921 International Convention for the Suppression of the Traffic in Women and Children. But it argues that the rules were not applicable to Korea, then its colony.

However, Korean scholars and activists argue that Japan’s forced annexation and colonization of the Korean Peninsula was illegal, and that Korea, thus, should not be regarded as a legitimate colony in the application of international law.

Kim Chang-rok, professor at Kyungpook National University’s law school, said that backed by ample evidence, the fact that the comfort women system violated international law has become “legal common sense” in the international community.

“So far, many official documents from the U.N. and other international organizations have confirmed (that the sexual slavery was a crime that violated international law,” he said.

“This common sense was a precious outcome forged as those who survived the unspeakably serious violations of their human rights traveled around the world and made repeated pleas (for the resolution of the issue).”

By Song Sang-ho (