The Prosecutors and the Peoples of the Asia-Pacific Region v. Hirohito Emperor Showa et al.
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During WWII, numerous grave crimes had been committed by several parties. One of the less known crimes relates to the Japanese army’s “comfort system”, an allegedly state-sanctioned system of mass sexual slavery and sexual violence/torture of hundreds of thousands of women and girls captured in occupied territories. Although the Japanese government has for a long time refused to acknowledge its responsibility – arguing that the “comfort women” were voluntary prostitutes – many surviving victims and supportive Non-Governmental Organisations (NGOs) sought relief. The current judgment is a result of their efforts: the Women's International War Crimes Tribunal for the Trial of Japan's Military Sexual Slavery, in a 300+-page judgment, concluded that the “comfort system” was indeed a crime against humanity and found all ten accused, then-Emperor Hirohito and nine high-ranking military commanders and Ministers (all deceased at the time the judgment was issued), by way of their superior positions and power to end the widespread rapes, as well because of their involvement in the establishment of the system, guilty.
It should be noted that the Tribunal is not an international tribunal in the common sense, like the International Criminal Tribunals for Rwanda and the former Yugoslavia which were created on authority of the United Nations Security Council, or like the International Criminal Court which was established by a treaty between sovereign states. Instead, the Tribunal’s authority is based on a higher moral ground, being premised on the understanding that ‘“law is an instrument of civil society” that does not belong exclusively to governments whether acting alone or in conjunction with the states. Accordingly, where states fail to exercise their obligations to ensure justice, civil society can and should step in’ (para. 65).
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The group of people and organisations forming the Tribunal convened on 8 December 2000 in Tokyo, and was adjourned pending investigations on 12 December 2000. After a year of deliberation, its final statement was rendered on 4 December 2001 in The Hague in the form of the ‘Judgement on the Common Indictment and the Application for Restitution and Reparation’.
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Legally relevant facts
The Women's International War Crimes Tribunal on Japan's Military Sexual Slavery was a peoples’ tribunal, organised by Asian women and human rights organisations and supported by international NGOs. It was set up to adjudicate Japan's military sexual violence committed during WWII (in particular the enslavement of the so-called "comfort women") to bring those responsible for it to justice, and to end the ongoing cycle of impunity for wartime sexual violence against women. The Tribunal had “jurisdiction” over war crimes, crimes against humanity and other international crimes (but all related to rape and other sexual violence), covering all countries and regions colonised, ruled, or under the military occupation of Japan before and during WWII. It also had jurisdiction over the acts or omissions of states in violation of international law. The Tribunal’s competency was based on international law applicable at the time of the commission of the crimes (i.e., the laws applied by the International Military Tribunal for the Far East (IMTFE)), taking into account subsequent developments in international law.
The Tribunal based its judgment on numerous witness statements – both victimised women and Japanese veterans – and on documentary, scholarly and historical evidence (from historians, legal experts, psychologists, and others).
The accused in the case were those persons who held the highest level positions of authority in Japan during the period the crimes had been committed (1937-1945) (para. 29). The accused were Emperor Hirohito, the official Head of State at the time, Ando Rikichi, Hata Shunroku, Matsui Iwane, Terauchi Hisaichi and Yamashita Tomoyuki, who were some of the highest-ranking military commanders in the Japanese army for various amounts of time between 1937 and 1945, Itagaki Seishiro, who was the Minister of War during 1938-1939, Kobayashi Seizo, who was Governor-General in 1936-1940, Tojo Hideki, whowas army Chief of Staff in 1937 and Minister of War in 1941-1944; and lastly Umezu Yoshijiro, whowas Vice Minister of War during 1936-1938, after which he became a military commander and, in 1944, army Chief of Staff (pp. 7-8). The Japanese government was indicted as well (p. 9).
All accused persons were already dead at the time the trial took place, either from natural causes or from execution after WWII, after they had been sentenced by the Tokyo IMTFE. The Japanese government refused to cooperate with the Tribunal as it did not recognise its jurisdiction since “jurisdiction to adjudicate is ancillary to the sovereignty of a state and belongs only to states and/or international organisations recognised by states as authoritative adjudicators” (para. 48). The Tribunal noted as (other) anticipated defence arguments: denial of due process (especially the trial of dead persons); alleged non-applicability of the laws of war to occupied territory with which Japan was not at war (this defence relates to war crimes only); violation of the non-retroactivity principle (nullum crimen sine lege) since “crimes against humanity” was not yet an established notion and slavery was not prohibited under customary law at the time; violation of double jeopardy (ne bis in idem), since several of the accused had been convicted and sentenced by the Tokyo IMTFE already in 1948; lack of command/superior responsibility since the accused neither knew of the extent of the sexual slavery system nor were they able to prevent or cease the situation; the absolute immunity of Emperor Hirohito as well as his innocence as he had no real power (the government had; the Emperor was merely a figurehead); and some Japanese members of the government had even contended that many of the “comfort women” had been voluntary prostitutes (paras. 49-56). Other arguments – especially in the light of the increasing willingness of government members to acknowledge the coercive nature of the “comfort system” and the government’s involvement – pertained to exclude the victims from any right to restitution or reparations because their claims were time-barred. Furthermore, it was argued that international law knows no standing for individuals and that the Peace Treaties concluded between Japan and the Allied Powers after WWII had already satisfied the victims’ rights (paras. 57-62).
The Tribunal’s purpose was basically to bring the “comfort system” to the attention of the international community, to establish the criminal responsibility of those responsible for the gruesome fate of the women forced into the system and, as such, to bring the perpetrators to justice and provide the survivors, at last, with some consolation. In the words of the Tribunal:
“The crimes committed against these survivors remain one of the greatest unacknowledged and unremedied injustices of the Second World War. There are no museums, no graves for the unknown "comfort woman", no education of future generations, and there have been no judgement days, for the victims of Japan's military sexual slavery and the rampant sexual violence and brutality that characterised its aggressive war.
Accordingly, through this Judgement, this Tribunal intends to honour all the women victimized by Japan's military sexual slavery system. The Judges recognise the great fortitude and dignity of the survivors who have toiled to survive and reconstruct their shattered lives and who have faced down fear and shame to tell their stories to the world and testify before us. Many of the women who have come forward to fight for justice have died unsung heroes. While the names inscribed in history's page have been, at best, those of the men who commit the crimes or who prosecute them, rather than the women who suffer them, this Judgement bears the names of the survivors who took the stand to tell their stories, and thereby, for four days at least, put wrong on the scaffold and truth on the throne” (paras. 1093-1094).
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Core legal questions
Can the “comfort system” be seen as a crime against humanity?
Can the accused be held responsible for their involvement in the establishment of the “comfort system”?
Can the accused be held responsible for the widespread rapes and other forms of sexual violence?
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Court's holding and analysis
The Tribunal found ‘that the “comfort system” was designed and maintained to facilitate the rape and sexual slavery of tens of thousands of young girls and women’ (para. 794), being so widespread and organised that no other conclusion could be reached than ‘that it was, in essence, state-sanctioned rape and enslavement’ (para. 798).
Contrary to (continued) Japanese denial, the Tribunal found that the “comfort system” of sexual slavery had been proven beyond any reasonable doubt, and that it was ‘conceived, established, regulated, maintained, and facilitated by the Japanese government and military’ (para. 800). As such, the system qualified for the “wide and systematic” element of the legal classification of crimes against humanity. Furthermore, the system was established during armed conflict and was closely related to it, as the idea behind it was, bitterly ironically, to ‘reduce the incidence of rape of local women, so as not to arouse the antagonism of the population in occupied territories and make their submission more difficult’ (para. 542). As such, all elements of a crime against humanity had been fulfilled.
The Tribunal found all nine high-ranking military and government officials, as well as Emperor Hirohito as de jure Head of State, guilty of rape and sexual slavery as crimes against humanity. The Tribunal also found Emperor Hirohito guilty by way of his superior responsibility for mass rape committed at a Filipino village. In addition, the Tribunal also found the Japanese government responsible for the harm inflicted by the “comfort system”. Furthermore, the judgment made recommendations to the Japanese government (to acknowledge its responsibility, to apologise and to provide relief to the victims, be it through reparations or otherwise, depending on what their situation requires), former Allied Power nations (to declassify all related documents and to acknowledge their failure to investigate and prosecute), and the UN (to ensure that Japan will provide full reparation and to seek a ruling on the matter by the International Court of Justice). In this regard, the Tribunal emphasised that while it has no power to enforce its judgment, it does have moral authority which should be enough to ensure enforcement by the national governments and the international community (paras. 1086-1088).
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R. Sakamoto, ‘The Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery: a Legal and Feminist Approach to the ‘Comfort Women’ Issue’, New Zealand Journal of Asian Studies, Vol. 3(1), June 2001, pp. 49-58.
E. Van Drom, ‘Assessment of the 2000 Tokyo Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery’, Vol. 46(2), March 2011, pp. 155-163.
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The Tokyo IMTFE had convicted some of the accused in the current case for their responsibility as commanders for massacres and other grave crimes committed by their soldiers during WWII. See, for example, the judgment issued by the U.S. Supreme Court on 4 February 1946 against Tomoyuki Yamashita , who was sentenced to death by hanging for his soldiers’ involvement in widespread war crimes in the Philippines.
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'Statement by Prime Minister Naoto Kan', 10 August 2010, [in English] [in Korean] [in Japanese].
'Statement by Prime Minister Tomiichi Murayama "On the occasion of the 50th anniversary of the war's end"', 15 August 1995, [in English] [in Korean] [in Japanese].