Dolgopol, Tina - Judgment of The Tokyo Women's Tribunal (2003)

12/13/2020 Dolgopol, Tina --- "The judgment of the Tokyo Women's Tribunal" [2003] AltLawJl 74; (2003) 28(5)
Jl 74; (2003) 28(5) Alternative Law Journal 242
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Dolgopol, Tina --- "The judgment of the Tokyo Women's Tribunal" [2003] AltLawJl 74;
(2003) 28(5) Alternative Law Journal 242
THE JUDGMENT OF THE
Tokyo Women's Tribunal
This important judgment has made a significant contribution to the development of
international law.
Introduction
The judgment
Factual findings
International criminal law
State responsibility
Conclusion
THE JUDGMENT OF THE

Tokyo Women's Tribunal
Tina Dolgopol[*]
This important judgment has made a significant contribution to the development of

international law.
The Women's International War Crimes Tribunal for the Trial of Japanese Military Sexual Slavery (the
Tribunal) was the culmination of efforts by a dedicated group of non-government organisations,
survivors of military sexual slavery and individuals to focus the world's attention once again on the
situation of the Comfort Women[1] and on Japan's failure to make any meaningful response to the
violations of the laws of war and the commission of crimes against humanity committed by its armed
forces during the Second World War. The Tribunal was notable not only because of its subject matter
but because it is one of the few times a group of non-western, regionally based non-government
organisations predominantly headed by women were able to gain the attention of the international
community and the world's media on an issue of importance to them.
The Tribunal was held from 8 to 10 December 2000 in Tokyo. The final judgment of the Tribunal was
delivered in The Hague during December 2001.[2] The following article explores the significance of the
judgment to the development of international law.
Introduction
It has been 13 years since the first Korean Comfort Woman, Kim Hak Sun,[3] spoke out about her
experiences. Since then, groups throughout the Asia-Pacific region have come together to support the
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12/13/2020 Dolgopol, Tina --- "The judgment of the Tokyo Women's Tribunal" [2003] AltLawJl 74; (2003) 28(5) Alternative Law Journal 242
Comfort Women in their effort to have history reflect their experiences of war and to try to obtain
reparations from the Japanese government. The concept of reparations includes the payment of
compensation, providing restitution and taking the alleviating measures required by satisfaction (such
as making an apology and creating memorials).[4] Of particular importance to the Comfort Women has
been the issuance of an appropriate apology and the payment of compensation by the government.
Throughout the 1990s there were numerous public meetings in Tokyo, Seoul and Manila where women
told their stories and international observers called on the government to make adequate reparations.
Organisations formed to assist the Comfort Women and to lobby on their behalf undertook an
international lobbying campaign and also convinced some national governments to provide assistance
and support to the Comfort Women.[5] These efforts led to public awareness of the issue as well as
support from the international community.[6] There have been repeated calls on Japan to pay
compensation and to offer a full and frank apology. Thus far Japan has evaded its responsibilities,
arguing any obligation it has to pay compensation is a moral rather than a legal obligation. In keeping
with this view the government helped to establish the Asian Women's Fund as a vehicle for receipt of
private donations. This fund has not been considered acceptable by the Comfort Women as a full and
final payment of compensation. They believe payments should be made from government funds as it
was the military and government of Japan that put in place the Comfort System.[7] Various government
officials have made vague statements expressing remorse, but none of these are considered to be a
true expression of regret, as they do not acknowledge the extent of Japan's responsibility.[8]
Inspired by the negotiations taking place for the creation of the International Criminal Court, a number
of organisations working on this issue decided that one way the historical record could be made to
reflect more accurately the lives of the Comfort Women and the responsibility of the Japanese
government, was to hold a tribunal organised by civil society.[9] The three organisations whose tireless
efforts ensured the success of the Tribunal were: The Korean Council for Women drafted into Military
Sexual Slavery,[10] ASCENT [11] and VAW-Net Japan.[12] They contacted other individuals and groups
throughout the region to ensure that representatives from each country where women's lives had been
so profoundly devastated would participate in the Tribunal. In addition the three organising bodies
sought and received advice from the members of the global women's community.
Groups were formed in each of the participating countries[13] to work on the gathering of evidence and
the development of a legal framework for the Tribunal. The evidence-gathering efforts of each of the
country-based groups were assisted by researchers in Japan who worked to find documentary
evidence that would relate specific military and government officials to the establishment of the Comfort
Stations and the forcible taking of women from each of the 'victimised' countries.
Discussions were held with the survivors throughout the preparatory phase. It became apparent that
they wanted the Tribunal to focus, in part, on the criminal responsibility of government and military
officials for what had happened to them. It is a continuing source of regret to the women that no official
has ever been brought to trial for the crimes committed against them. Although recognising that the
judgment of the Tribunal would not be enforceable in the sense that none of the named defendants
would be punished if found guilty of an offence, the women felt strongly that a public finding of criminal
responsibility on the part of Japanese officials would assist in helping them to find peace within
themselves. The emphasis given to the needs of the survivors by the organisers of the Tribunal made
this effort more akin to the processes put in place by truth commissions.[14]
During a meeting of the Chief and Country Prosecutors it was decided to combine the trying of a
criminal indictment with a claim for reparations. The idea of marrying these two processes came from
the procedures put in place for the International Criminal Court whereby victims of war crimes and
crimes against humanity may bring a claim for reparations. [15] The prosecutors also decided to have
the criminal indictment focus on crimes against humanity. The underlying reason for this had to do with
the pre-war status of Korea and Taiwan. Each of these countries were treated by Japan and by the
Allies as a colony of Japan. War crimes are committed against residents of an opposing state whereas
crimes against humanity can be charged even when the acts are 'committed against a civilian
population of the perpetrator state or against stateless persons'.[16] Often there is no difference in the
terminology used to describe a crime against humanity in comparison to a war crime. Torture, murder,
enslavement, rape and enforced prostitution were considered to be both war crimes and crimes against
humanity by the close of the First World War.[17] An essential distinction between the two crimes is the
threshold requirements: a war crime can be charged for each and every act that falls within the crime's
definition but a crime against humanity can only be charged if the acts were 'widespread' or
'systematic'.[18] This threshold requirement was easily met in the case of the Comfort System.
Another crucial decision of the prosecutors was to frame the indictment so that the specific charges
would be addressed as if this were a continuation of the International Military Tribunal for the Far East
(IMTFE). The significance of this decision was that the law applicable to the criminal aspects of the
Tribunal would be that as applied or that which could have been applied if the Comfort System had
been adjudicated by the IMTFE. It also meant that the legal basis for the Tribunal's decision could not
be attacked as being based on modem concepts of international law inapplicable at the time the
comfort system was implemented.[19] Further utilising the law as applied at the IMTFE would allow the
Tribunal to focus on principles of law accepted by Japan when it signed the San Francisco Peace
Treaty.[20]
With respect to the application for reparations, the prosecutors decided to focus on both the violations
of international treaty and customary law committed by Japan during the war as well as the continuing
violations it has committed by failing to make adequate reparations. By highlighting Japan's ongoing
violations, the prosecutors enabled the judges to make use of developments in the field of state
responsibility, in particular the International Law Commission's Draft Articles on State Responsibility.[21]
The proceedings of the Tribunal[22]
The judges of the Tribunal[23] sat from 8 to 10 December 2000. More than 75 survivors were present
during the proceedings. Although some of the survivors took the witness stand to give their evidence,
many of the personal testimonies were given by video in order to avoid having the women recount the
horrific details of the events they had had to endure before an audience of approximately 1500 people.
Those whose evidence was received through videotapes were present at the Tribunal and swore an
oath affirming the truth of the statements made in the video.
The Tribunal also took evidence from a number of expert witnesses. Their evidence covered issues
such as the organisation of the Japanese military; the content of documents concerning the Comfort
System found in government archives; the structure of the Japanese government during the war,
including the powers exercised by the Emperor; the incidence and effect of trauma on victims of mass
rape; and the applicable rules of international law applying at the close of World War II. Two former
Japanese soldiers agreed to come forward to tell of their involvement in and experiences of the
Comfort System.[24] In addition, the country prosecution teams as well as the Co-Chief Prosecutors
introduced several hundred pages of documentary evidence.
The Japanese government was invited to attend and to participate in the Tribunal's proceedings. No
response was made to this invitation. The judges decided that they would appoint amicus curiae to
allow the possible legal arguments that could be made against the findings of the Tribunal to be aired.
The judgment
Factual findings
The factual findings of the Tribunal recount the stories of a number of the women who testified,
describing the horrors of the treatment they had to endure. As a number of accounts of these events
have been published previously, they will not be summarised here.[25] However, one of the concluding
observations made by the judges of the Tribunal does require mentioning both because it is an aspect
of this saga that can too easily be forgotten and because it relates to the conditions that continue to
influence the trafficking of women and children at present. At paragraphs 261 and 262 the judges state:
261. The Japanese military preyed on the most vulnerable members of society for its
sexual slavery system -those who because of age, poverty, class, family status, education,
nationality, or ethnicity were most susceptible to being deceived and otherwise trapped into
slavery ...
262. Many, if not most, 'comfort women' came from poor, rural households where the girls
had to go to work at an early age to provide support to their families. Some ofthe witnesses
testified that at the time they were enslaved, although they were still just girls, they had
already been working outside the home. Already living a difficult life, they were among the
most underprivileged people in their own society.
Crucial to the court's ultimate findings and conclusions, particularly with respect to reparations, was the
testimony of survivors and several of the expert witnesses concerning the long-term effect of being
trapped in the Comfort System. With respect to the issue of 'continuing harm' the judges considered
the evidence under the following headings: physical suffering; reproductive harm; psychological harm;
harm to intimate relations and social/community life; silence; and poverty and social and economic
hardship. Extracts from the Tribunal's summary of this evidence are set out below:
1. Enduring Physical Suffering
396. Wan Ai-hua testified that she suffers pain from being tortured for punishment after
being recaptured after escape including being hung from a tree by her arms. Kim Young
Suk testified that she has aches in her legs from broken bones where the soldiers kicked
her ...
398. Two survivors mentioned digestive problems caused by torture. Kim Young Suk
suffers from digestive problems as a result of being cut in her stomach area with a sword,
and Kim Bok Dong suffers from having water forced down her throat with a hose.
400. Chun Ok Soon lost her ability to speak as a result of tattoos that were imprinted on
her tongue; she also lost one eye as a result of violence.
2. Reproductive Harm
404. The rate of infection with sexually transmitted diseases was high in the 'comfort
stations.' Two Indonesian survivors, Ms Titih and Ms Sukarlin, suffered from untreated
syphilis until their advanced age. Medical records from a small group study at In-chun S-
rang Hospital in (South] Korea show five survivors suffering from late latent syphilis.
405.... Six survivors testified that they were unable to bear children ... Ms X and Ms
Suhanah testified that they had had their uteruses removed due to infection as a result of
sexual violence. Park Young Sim testified that a doctor in the POW camp removed her
womb after she had a miscarriage and Chong Sun Myong and Le San Gyung lost their
wombs as a result of torture.
3. Ongoing Psychological Harm
412. Survivors also experienced nervous breakdowns and addictions due to the trauma
they suffered. Park Young Sim testified that she suffered a nervous breakdown. Song Shin
Do and Teng Kao Pao Chu both testified that they had drinking problems. Teng Kao Pao
Chu stated that she was able to quit drinking only when it was necessary to win the respect
of her children. A study at In-chun Sa-rang Hospital showed that a large number of former
'comfort women' smoked and had smoking-related illnesses due to the stress. Some
became addicted to painkillers.
4. Harm to Intimate Relationships and Social/Community Life
424. Many witnesses testified that, while although they eventually married, their marriages
ended in abuse and divorce. Lin Shen-Chung (lyang-Apay) stated, 'Of the history of my
four marriages and three divorces, my husband's difficulty to accept my past usually is the
main reason for my divorces.' Her first husband divorced her when he learned the truth; at
the time she was three months pregnant. Her second husband took their three children and
left her when he learned of her past. Her fourth husband had known of her past before the
marriage, but found fault with her later and tried to extort money from her to obtain a
divorce. Only her third husband, who died in 1971, was kind to her.
438. Several survivors of sexual slavery testified that they lost the ability to take pleasure in
sexual relations. As Jan Ruff-O'Herne stated, 'How can you enjoy lovemaking, even by
your husband, if you are reminded of all the hundreds of times you were forcibly raped by
the Japanese?' She stated that she felt fortunate that her husband [was] very patient. Ms
Mardiyem and Ms S testified that they had no pleasure in sexual relations with their
husbands ...
5. Silence
443.... [F]or others ... their family members were unable to handle the truth. Both the family
members and the women themselves suffered from this. Jan Ruff-O'Herne testified that
she only spoke with her mother once about what she had suffered as a 'comfort women,'
and that because her mother could not cope with what she heard, she never spoke about it
again. Kim Bok Dong testified that at first she told her mother only that she had been a
nurse, and that her mother had a heart attack when she finally told her mother the truth in
response to her mother's urging for her to marry. Florencia Macapagal de Ia Pena testified
that when he heard that she had been raped, her father became very angry and
disappeared because he could not control himself.
6. Poverty and Social/Economic hardship
446. Other witnesses testified that they earned their living performing domestic labor or
working in other occupations in which they had a marginal social status. Song Shin Do
testified that she did kitchen work for a Korean-Japanese man who owned a restaurant,
after she had been left alone in Japan. Kim Gunja testified that she worked as a peddler
and servant. ...
The testimony of two Korean experts, Lee, Sooyun[26] and Kee, Chulwon,[27] confirmed the medical
and psychological effects the comfort system had on the women. Two other experts testified about the
connection between social justice and recovery for survivors. Lepa Mladjenovic, 'a psychologist and
expert on sexual violence against women in armed conflict'[28] noted that 'social justice [was] an
important part of recovery for survivors of sexual violence in armed conflict ... [T]rauma is not the
private matter of a woman, but a political issue. When the state takes responsibility for the sexual
violence, it can contribute to the survivor's recovery, and conversely, when it refuses to take
responsibility for the crimes, it can impede the survivor's recovery'.[29] Young-Hee Shim from the
Department of Sociology at Hanyang University spoke of'power of truth of the women's stories to
restore collective memory and compel the rewriting of history. She also note[d] that for many survivors
discussing their stories solved some of the pains of their trauma.' [30]
International criminal law
The judgment contains an overview of the development of the concept of crimes against humanity and
the pre-Nuremberg and Tokyo precedents for considering rape as a crime against humanity. It also
analyses the handling of sexual crimes by both the Nuremberg and Tokyo Tribunals. Given the
limitations of space it is not possible to summarise in full this portion of judgement. However, as noted
above, one aspect of the judgment that may influence the future casework of the International Criminal
Court is its section on sexual slavery and therefore the following paragraphs focus on the discussion of
this issue.
Persuaded that the term 'enforced prostitution'[31] did not capture the essence of the women's
experience and the nature of the crime they endured, the judges drew on established principles of
international law with respect to the prohibitions against slavery and forced labour, as well as those
pertaining to the trafficking of women and children, and came to the conclusion that 'this crime was
unquestionably encompassed by the accepted understanding of slavery, rape and forced labour
prevailing during the Second World War'.[32]
The judge's decision to direct their attention to this issue was based on their belief that to understand
the true nature of the Comfort System one had to comprehend its connection to slavery. Early in their
discussion of this question they stated: 'Slavery is the antithesis of freedom. As a basic tenet of the rule
of law, freedom cannot be relinquished.'[33] This observation, although seemingly obvious, is at the
heart of all efforts to control the trafficking of women and children. Without freedom all other rights are
compromised, such as 'the right to protect, control and determine the disposition of one's body and self
in relation, for example, to work, sexuality, and reproduction; to practice one's religion or spirituality, to
express one's opinions, to form intimate relationships of one's choice and to decide whether to have a
family ... and to have social security and the economic, social and cultural support necessary to have
dignity and the full and free development of one's potential.'[34]
Included in this section of the judgment is a description of the international norms prohibiting slavery
including the 1926 Convention Against Slavery, the concept of forced labour, including the International
Labor Organizations Convention prohibiting forced labor, the Fourth Hague Convention of 1907 as well
as the Annexes to the Hague Conventions (these are relevant to prohibitions during war on both slave
labour and rape), various conventions prohibiting the trafficking of women and children and the
development of the crime of enforced prostitution. The Tribunal's purpose in canvassing this material
was not to highlight each and every violation of these norms but rather to give support to the idea that a
crime against humanity of sexual slavery existed even if not given this nomenclature at the time the
IMTFE made its decision.
Having come to the conclusion that such a crime existed, the judges defined its essential elements as
follows:
618. We find that the actus reus of the crime of sexual slavery is the exercise of any or all
of the powers attaching to the right of ownership over a person by exercising sexual control
over a person or depriving a person of sexual autonomy. Thus we consider that control
over a persons' sexuality or sexual autonomy may in and ofitself constitute a power
attaching to the right of ownership. The mens rea is the intentional exercise of such
powers.[35] [footnotes omitted]
In keeping with the educative effect of such a judgment, the Tribunal also offers a sound critique of the
indicia of slavery and sexual slavery agreed to at the Preparatory Commission for the Elements of
Crime Annex to the Statute of the International Criminal Court.[36] The Preparatory Commission used
what many international lawyers consider to be an excessively narrow definition of slavery and this was
then incorporated into the elements of sexual slavery. The relevant text adopted by the Preparatory
Commission reads as follows:
1. The perpetrator exercised any or all of the powers attaching to the right of ownership
over one or more persons, such as by purchasing, selling, lending or bartering such a
person or persons or by imposing on them a similar deprivation of liberty.
2. The perpetrator caused such person or persons to engage in one or more acts of a
sexual nature.[37]
By contrast, the approach adopted by the International Criminal Tribunal for Yugoslavia (ICTY) in the
Kunarac judgment is more nuanced in its view of the concept of enslavement, in particular in its
approach to the actions that would come within that part of the 1926 Slavery Convention's phrase: 'the
powers attaching to the right of ownership.' The pertinent part of the Kunarac decision reads as follows:
[I]ndications of enslavement include elements of control and ownership; the restriction or

control of an individual's autonomy, freedom of choice or freedom of movement; and, often,
the accruing of some gain to the perpetrator. The consent or free will of the victim is
absent. It is often rendered impossible or irrelevant by, for example, the threat or use of
force or other forms of coercion; the fear of violence, deception or captivity, psychological
oppression or socio-economic conditions. Further indications of enslavement include
exploitation; the exaction of forced or compulsory labour or service, often without
remuneration and often, though not necessarily, involving physical hardship; sex;
prostitution; and human trafficking. With respect to forced or compulsory labour or service,
not all labour or service by civilians in armed conflicts, is prohibited-strict conditions are,
however, set for such labour or service. The 'acquisition' or 'disposal' of someone for
monetary or other compensation is not a requirement for enslavement. Doing so however,
is a prime example of the exercise of the right of ownership over someone. The duration of
the suspected exercise of powers attaching to the right of ownership is another factor
[whose] importance will depend on the existence of other indications of enslavement.
[The basic factors include] the control of someone's movement, control of physical
environment, psychological control, measures taken to prevent or deter escape, force,
threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment
and abuse, control of sexuality and forced labour.[38] [footnotes omitted]
In comparing the Elements of Crimes to the Kunarac judgment it becomes obvious that the essential
difference is that the latter focuses on the status or condition of the person being enslaved whereas the
former directs its attention to the use of the person in a commercial exchange. This difference would be
crucial to victims. For them the essence of being enslaved is the loss of control over their bodies.
Slavery is an affront to human dignity precisely because it denies a person
one of the essential elements of personhood, autonomy. To focus on the gain of the perpetrator is to
overlook the very nature of the crime. As noted above, it is to be hoped that the prosecutors and judges
of the International Criminal Court will exercise their discretion with respect to the application of this
particular article of the Elements of Crimes and will look to general principles of international law when
considering the acts that fall within sexual slavery.
State responsibility
The application for reparations from Japan was made in the name of the Peoples of the Asia-Pacific
Region. This was done purposefully given that the usual framework for cases before the International
Court of Justice is for claims to be brought by one state against another. The title was designed to
highlight the status of the Tribunal as a people's Tribunal and demonstrate the commitment of civil
society throughout the region to work for justice for the Comfort Women.
It is a basic premise of international law that a state is responsible for any internationally wrongful act
attributable to the state. Violations of international law can include treaty law or customary norms of
international law. When a violation has occurred, a state is responsible to undertake appropriate
remedial measures. These can include the payment of compensation, restitution of property, the
making of an apology. In the usual course of events if it were not possible for someone to seek redress
through the legal system of the offending state they would ask for diplomatic assistance from the
country whose nationality they held or the country in which they were normally resident. If such efforts
failed then a case would be brought before the International Court of Justice by the assisting country,
assuming both states were parties to the Court's Statute.
In recent years the International Law Commission (ILC) has had to grapple with the issue of wrongs
committed against non-state victims and whether international law has developed to the point that a
victim can look for assistance beyond the borders of their own state. The ILC has recommended that
whenever a wrong is committed against a non-state victim any party to the collective obligation (treaty
or customary norm) should be able to push for the acceptance of responsibility by the offending state
either through diplomatic channels or the ICJ.[39]
The approach of the ILC highlights the difficulty that individuals may have in seeking an effective
remedy when a state's violations of its international obligations has had a direct effect on their person
or property. It is for this reason that the judges of the Tribunal decided to address the issue of
reparations and the connection between reparations and the ending of impunity for mass violations of
human rights. The evidence before the Tribunal as well as that in the public domain made clear that
Japan had breached a range of its treaty and customary obligations. Implicit in its continued failure to
accept responsibility for these breaches, is the suggestion that there should not be any consequences
for a state whose governmental apparatus condones, authorises and encourages the commission of
mass violations of human rights. This course of behaviour by Japan undermines the international
community's efforts to uphold and enforce human rights.
In its discussion of state responsibility the Tribunal focuses on the concept of a continuing wrong. As
international law has evolved, the idea has developed that the failure to take rectifying action is itself a
separate wrong and that the amount of compensation to be paid and the form of restitution that may be
appropriate should take account of the ongoing and repeated nature of the violations.[40] The right to
an effective remedy is now enshrined in both the UN Declaration of Human Rights and the International
Covenant on Civil and Political Rights. For many who have suffered mass violations of human rights a
vital part of an effective remedy is finding out about the events that led to those violations and who was
responsible for them. The literature on transitional justice has increasingly focused on the right of both
victims and society to know the truth of what happened during periods of mass violations of human
rights.[41] The Special Rapporteur of the UN Subcommission on the Prevention of Discrimination on the
right to restitution, compensation and rehabilitation observed that it was incumbent on states to make
available all material in their possession concerning human rights violations.[42]
A major concern of the survivors, non-government organisations and individuals is Japan's failure to
produce a full and frank account of the comfort system. Surviving documents[43] associated with this
period have continued to be concealed by the government. During the proceedings of the Tribunal,
Professor Yoshimi, an expert on the Comfort System and the person whose tenacious and successful
search for documents forced the government to admit that the Japanese military had been involved in
the establishment and maintenance of the Comfort System,[44] testified that 'many documents remain
secret, namely, "police records, documents of the Department of Overseas Affairs and Home Ministry
relating to the colonies, the huge collection of diaries of officials and personnel accompanying the
military held by the Defence Agency, materials relating to the war crimes trials held by the Justice
Ministry and the Foreign Ministry, and Welfare Ministry documents relating to demobilization and
support"' (footnotes omitted).[45]
The evidence before the Tribunal also caused the judges to express their grave concern about the
unexplained failure of the government to apologise directly to the Comfort Women. Statements of
remorse have been made to the governments of The Philippines, the Republic of Korea and the
Democratic People's Republic of Korea. They have also been repeated before various UN bodies, but
no letters of apology have been sent to the women nor has the Japanese government ever made any
attempt to have government officials meet personally with the women in their home countries. Even the
statements of remorse that have been made are of questionable value. None of the statements admit
that the acts of Japanese government or military officials are criminal offences. Further each of the
statements made by the government has used an expression in Japanese that does not connote a
serious sense of wrongdoing.[46] The governments of North and South Korea as well as China have
noted the linguistic issues and have indicated their dissatisfaction with Japan's choice of language.[47]
The Japanese government's failure to apologise in an adequate fashion has been exacerbated by its
unwillingness to take action against government Ministers who have made derogatory comments about
the women in recent years.[48]
The final section of the judgment contains a series of recommendations, most of which are directed to
the government of Japan.[49] They include:
1. Acknowledge fully its responsibility and liability for the establishment of the 'Comfort System', and
that this system was in violation of international law.
2. Issue a full and frank apology, taking legal responsibility and giving guarantees of non-repetition.
3. Compensate the victims and survivors and those entitled to recover as a result of the violations
declared herein through the government and in amounts adequate to redress the harm and deter its
future occurrence.
5. Consider, in consultation with the survivors the establishment of a Truth and Reconciliation
Commissiothat will create an historical record of the gender based crimes committed during the war,
transition, and occupation.
8. Support training in the relation between the military slave system and gender inequality and the
prerequisites for realizing gender equality and respect of the equality of all the peoples of the
region.'[50]
Conclusion
The holding of the Tribunal and the judgment that emanated from it have made two equally important
but distinct contributions to international law. The rigorous legal analysis contained in the judgment has
the potential to influence the manner in which the International Criminal Court will approach issues
such as reparations and the definition of sexual slavery. The effort of international civil society in
organising and bringing to fruition the Tribunal poses a challenge to the international community with
respect to the adequacy of its response to the needs and rights of victims and survivors following mass
violations of the laws of war.
With regard to the future work of the International Criminal Court and the Victims Trust Fund[51] the
judgment offers a perceptive analysis of the concept of continuing harm and provides an insight into
the issues that must be taken into account when decisions are being made about the award of
reparations or the provision of services. The judges of the Tribunal have set out in detail the
devastating effect that being held within the 'Comfort System' had on women throughout the Asia-
Pacific region. Too often in the past, awards of reparations have treated the crimes experienced by
survivors as distinct and isolated events rather than events that will affect the survivors or the victims'
relatives for years to come. The judgment has highlighted the necessity to consider the survivor's
specific long-term needs. This may encourage the Victims Trust Fund to think carefully and creatively
about the types of services that should be supported and nurtured. It should also persuade the Fund to
assist research partnerships between non-government organisations and academics that focus on the
efficacy of particular services and the manner in which the long-term needs of survivors can be
addressed.
As noted in the discussion on sexual slavery, the Judgment adopts and develops the concept of sexual
slavery in accordance with the ideas emerging from the ICTY and demonstrates that the international
legal community does not adhere to the narrow definition given to the term slavery in the Elements of
Crimes annex to the Statute for the International Criminal Court. This should encourage the newly
appointed prosecutor to give a broader definition to this crime when considering the charges to be filed
against potential defendants. Hopefully the judges of the International Criminal Court will consider the
approach of the ICTY and the Tribunal when an appropriate case comes before them.
Turning to the broader significance of the Tribunal it presents a demand to the international community
that it tum its mind to a heretofore unasked but important question: what should the international
community be doing to acknowledge the suffering of those who either have been victims of or who
have survived war crimes and crimes against humanity in cases where the perpetrators of those crimes
will never be brought to trial? The inevitable limitation of resources will mean that not all crimes within
the jurisdiction of the International Criminal Court will in fact be brought to trial. Many countries lack the
resources to conduct either trials or truth commissions. The evidence placed before the Tribunal
demonstrated that the years of silence that surrounded the issue of the 'Comfort System' left the
women affected by that system wondering about their own value as human beings. They had to live
with the physical and psychological damage inflicted on them whilst knowing that no one had ever
been held accountable for what had happened to them. Whatever dignity has now been restored
cannot take away from the years of shame, fear and regret that they have had to endure alone.
We cannot assume that the Comfort Women will be the last group of survivors to feel this way. This
then leads to two fundamental questions. What obligation does the international community have to
those who do not have access to any mechanism that will provide them with 'justice'? And, if we
continue to do nothing are we complicit in the continuing harm that will be experienced by the
survivors?
Perhaps it is time to look beyond official state and international organs for the means of achieving
justice, particularly in the documentation of events and the acknowledgement of victims and survivors.
It may be that the Tribunal's significance will be the message it sends to others that something can be
done by ordinary people to encourage the healing process of victims and to create a lasting historical
record of a previously overlooked piece of history. The evidence gathered for this Tribunal will
eventually be digitised and one set of the documents will be housed in a women's museum in 'Tokyo.
[52] This will allow scholars and other interested individuals to study, not only the Comfort System, but
also the birth and work of an international movement for the furtherance of women's rights.
Non-government organisations are composed of ordinary people who come together to pursue a
particular cause. Unlike governments they do not seek power for themselves. Their efforts are directed
to the wellbeing of the victims and survivors.[53] Because of this their work is more likely to involve the
empowerment of the people they work with. The empowerment of the Comfort Women has been a
consistent theme of the organisations working with them. As their cause received international attention
they were encouraged to understand how their courage in coming forward had ensured that history
would remember their stories. The inner strength of the women has allowed them to make their voices
heard in many fora throughout the world. It is largely through the efforts of the Comfort Women and the
organisations working with them that sexual slavery was included as both a war crime and a crime
against humanity in the Statute for the International Criminal Court.
The Tribunal is a powerful testament to the fact that the voices of those clamouring for justice cannot
be silenced.
[*] Tina Dolgopol teaches law at Flinders University of South
Australia.
© 2003 Tina Dolgopol

[1]
Despite its negative connotations this article will continue to use the term Comfort Women as the
survivors themselves have decided to use the term because of the notoriety it has gained since the
1990s.
[2]
Preliminary findings were issued on 12 December 2000. These addressed the responsibility of
Emperor Hirohito for the crimes committed against the Comfort Women.
[3]
Judgment of The Women's International War Crimes Tribunal2000 for the Trial of Japanese Military
Sexual Slavery delivered in The Hague, December 2001 at para 949 ('Judgment'). A copy of the
Judgment is in the possession of the author.
[4]
For a thorough analysis of the concept of reparations, see Study Concerning the Right to
Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and
Fundamental Freedoms, Final Report, submitted by Mr Theo van Boven, Special Rapporteur of the UN
Subcommission on the Prevention of Discrimination, UN Doc. E/CN/4/Sub.2/1993/8 (2 July 1993) and
The Right to Restitution Compensation and Rehabilitation for Victims of Gross Violations of Human
Rights and Fundamental Freedoms, Final Report of Mr M. Cherif Bassiouni, Special Rapporteur of the
UN Commission on Human Rights, UN Doc.E/CH.4/2000/62 (18 January 2000).
[5]Most notable of these has been the health and financial benefits put in place by the government of
the Republic of Korea (South Korea).
[6]Non-government organisations have reported on the issue, see e.g., U Dolgopol and S Paranjape,
Comfort Women- An Unfinished Ordeal (International Commission of Jurists 1994) and two UN Special
Rapporteurs have undertaken investigative missions to Japan and elsewhere in the region, see, 'An
Analysis of the Legal Liability of the Government of Japan for 'Comfort Women Stations' Established
during the Second World War', Appendix to the Final Report on Systematic Rape, Sexual Slavery, and
Slavery-like Practices during Armed Conflict, submitted by Gay J McDougall, Special Rapporteur, UN
Doc. E/CN.4/ Sub.2/1998/13 and Report on the Mission to the Democratic People's Republic of Korea,
the Republic of Korea and Japan on the issue of military sexual slavery in wartime, Addendum to the
Report of the Special Rapporteur on violence against women, its causes and consequences, Ms
Radhika Coomaraswamy, UN Doc. E/CN.4/1996/53, Add. 1, 4 (January 1996).
[7]The Judgment uses the phrase 'Comfort System' in order to highlight the effort and planning
undertaken by Japanese military and government officials to set up a network of military brothels
known as 'Comfort Stations'. The first 'Comfort Station' was established in China during 1932.
Paragraphs 145-372 of the judgment trace the history of the military's use and involvement in the
creation, maintenance and regulation of the 'Comfort Stations' as well as the participation of
government officials in territories under Japan's colonial or military occupation in the forceful or
deceitful taking of women and girls for the purpose of being put into the 'Comfort Stations'.
[8]
See Judgment at paras 973-88 and the discussion of this issue below in the section on 'State
Responsibility'.
[9]There have been previous 'peoples tribunals' the most famous of which was the Russell Tribunal
that examined the atrocities committed by US soldiers in Vietnam.
[10]
Based in South Korea; the principal representative to the steering committee for the Tribunal was
Professor Yun Sun Ok.
[11]
A women's human rights organisation based in the Philippines; the principal representative to the
steering committee was Indai Sajor.
[12]Headquartered in Tokyo but with support networks throughout Japan; the principal representative to
the steering committee was Yayori Matsui
[13]China, East Timor, Indonesia, Malaysia, The Netherlands, North Korea, South Korea and the
Philippines.
[14]As Martha Minow has observed, the atmosphere ofa truth commission where witnesses are
encouraged to tell their stories in a non-threatening environment is probably more conducive to the
healing of victims than a criminal trial. SeeM Minnow, Between Vengeance and Forgiveness: Facing
History after Genocide and Mass Violence (1998).
[15] Article 75 of the Statute for the International Criminal Court.
[16] Judgment, para 516.
[17] Following World War I the Commission on Responsibilities of the Paris Peace Commission of 1919
drew up a list of war crimes. That list included the crimes of rape and enforced prostitution. By 1941 the
Allied Nations were discussing the possibility of holding war crimes trials at the close of the Second
World War (declarations to this effect committed by Germany and Japan were reported in the media)
and they used the Peace Commission list when instructing their armed forces about possible charges
and the evidence they would need to collect. See U. Dolgopol, 'Rape as a War Crime-Mythology and
History,' in I. Sajor (ed) Common Grounds (ASCENT Manila 1998).
[18]Judgment, para 530. The other threshold requirements for crimes against humanity are discussed
in paras 528 and 529.
[19]A slightly different approach is taken with respect to the crime of sexual slavery. As explained below
this crime is based on crimes such as enslavement and enforced prostitution recognised at the time the
IMTFE took place, but it was not given that nomenclature. The judges of the Tribunal adopted tht:;
phrase sexual slavery rather than enforced prostitution because of the women's concern that use of the
phrase 'prostitution' in any sense would re-open the shame they have felt about what happened to
them.
[20]UN Treaty Series, vol36 at 47 as cited in U Dolgopol and S Paranjape, above, n 6. See also
Judgment, para 510. In addition to outlining the rules applicable at the close of the war the judgment
includes an excellent summary of recent developments in international law. These are used to
demonstrate how the principles developed during the Nuremberg and Tokyo tribunals have been
refined and enhanced by the International Tribunals for Yugoslavia and Rwanda. Recent matenals are
also cited by the Tribunal when considering specific issues that did not arise at either Nuremberg or
Tokyo.
[21]UN Doc. A/CN.4/L.602, adopted by the Drafting Committee on second reading (25 May 2001) as
cited in the Judgment at para 894.
[22]
The description of the proceedings is based on paras 40-43 of the Judgment as well as the author's
observations.
[23]Gabrielle Kirk McDonald (Presiding Judge, formerly Presiding Judge at the Tribunal for the former
Yugoslavia), Carmen Arguibay (Argentinean Judge and Ad Hoc Judge at the Tribunal for the Former
Yugoslavia), Christine Chinkin (Prof ssor of La, London School of Economics) and Willy Mutunga
(Chau, Human R1ghts CommiSSion of Kenya, a non-government organisation). In keeping with the
view that this was an event of major international significance and that the proceedings had to be and
had to be seen to be condu tein a manner that came as close as possible to approximating a judicial
hearing, leadings jurists and international scholars were approached to sit as judges. They were
guaranteed their independence.. The Judgment issued by the Tribunal is the intellectual work of the
JUdges and theu assistants and their determinations on matters of evidence and legal argument arc
theirs alone.
[24]
Some of the Japanese experts and the former soldiers reportedly received threatening messages
and telephone calls during the Tribunal.
[25]
See eg, G Hicks, The Comfort Women: The Sex Slaves of the Imperial Japanese Forces (1995)
and U Dolgopol and S Paranjape, above, n 6.
[26] Medical Sociology Department of Seoul National University.
[27] Director, Imam Counselling Center.
[29] Judgment, 453.
[31]
Enforced prostitution was listed as a war crime following the close of World War I. See U Dolgopol,
above, n 17.
[35]
The judges note that their view about the constitutive elements of the crime is supported by the
JUdgment in Prosecutor v Dragoljub Kunarac Roadmir Kovac and Zoran Vukovic, Judgment, IT-96-23-
T & IT-96:223/IT (22 February 200I) (a judgment of a Trial Chamber of the ICTY). See Judgment at
paras 621-627 for a discussion of this judgment.
[36] Report of the Preparatory Commission for the International Criminal Court,
Addendum Part II: Finalised draft
text of the Elements of Crimes, PCNICC/200/Add.2. Noting that the limited definition adopted in the
Annex would in fact cover the acts in this case, the judges were concerned that 'legitimate cases of
enslavement and sexual slavery' could be excluded from the International. Criminal Court's
consideration if the narrow definition of these crimes was adopted by the Prosecutor and the court
itself. The judges noted that the Elements Annex is not binding on the International Criminal Court and
that the enunciation of the crime in the Statue is broader than the definition given to it in the Annex.
See para 630 of the Judgment.
[37] As cited in Judgment at footnote 478.
[38]
Kunarac Trial Chamber Judgment, paras 542 and 543, as Cited in Judgment above, n 35, at para
622.
[39] See Judgment, para 877 for the text of the ILC recommendation.
[40]The concept of an ongoing violation has two prongs. The first is the toleration of a violation by a
government that changes the nature of the government's responsibility. This is the type of ongoing
violation referred to by The International Court of Justice in the Iran case. (United States Diplomatic
and Consular Staff in Teheran Case (United States v Iran) 1980 ICJ Rep 3, as cited in M Dixon and R
McCorquodale, Cases and Materials on International Law (1991) 407-8. The second is where a
government refuses to cease violating its international obligations. This issue was discussed in the
Namibia case where the ICJ noted that international responsibilities arise from continuing violations.
(Namibia Case 1971 ICJ Rep 16 as quoted in Dixon and McCorquodale at 401.)
[41] See eg, Martha Minow, above, n 14.
[43]Many of the documents relating to Japan's war strategy and the conduct of the war were destroyed
as the war came to a close in line with government directives. See paras 937-40 of the Judgment
describing the expert and documentary evidence submitted to the Tribunal with respect to this issue.
[44]A report on Professor Yoshimi's efforts was published in the Asahi Simbun (a leading Japanese
daily newspaper) in January 1992. Some of the documents from his initial discoveries are described in
the Dolgopol and Paranjape, above n 6 at 40-3. A more complete collection of the documentary
material uncovered by Profession Yoshimi can be found in Yoshimi Yoshiak Comfort Women: Sexual
Slavery in the Japanese Military During World War II (Suzanne O'Brien trans, 2000).
[45]
Judgment at para 943. Other expert witnesses, namely Professors Yamada and Yoshida,
supported Professor Yoshimi's testimony.
[46]The distinction between 'owabi' and 'shazai' is described in Judgment at paras 973-4. The former is
the word used by the government and the latter is the term experts believe should be used.
[48] These comments are described in paras 987-8 of the Judgment.
[49]
Others are directed at the former Allied nations and the remainder are directed to the United
Nations.
[50]The full text of the recommendations is contained in paragraphs 1053-55 of the Judgment. Some of
the recommendations are directed at the former Allied nations as well as the United Nations. Many
women's groups in the Asia-Pacific region have argued that rape and sexual slavery are an outgrowth
of the underlying inequality of women. If women continue to be treated as inferior and as objects in
society during peacetime then it is inevitable that their position will deteriorate during war. They also
note that the militarisation of any society or region has negative consequences for respect for the
human dignity of women.
[51]The Victims Trust Fund was created by the Court to receive voluntary donations to augment the
funds available for both individual reparations and the provision of services to those affected by war
crimes and crimes against humanity. The website for the Victims Trust Fund is:
<http://w,ww.victimstrustfund.org/> .
[52]
One of the main organisers of the Tribunal, Yayori Matsui, died in December 2002. In her will she
has devoted her estate to the establishment of such a museum.
[53]
M Ballengee, 'Comment: The Critical Role of Non-governmental Organisations in Transitional
Justice, A Case Study of Guatemala' [1999-2000] 4 UCLA J. Int'l and For Aff. 477 at 479.
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12/13/2020 Dolgopol, Tina --- "The judgment of the Tokyo Women's Tribunal" [2003] AltLawJl 74; (2003) 28(5)

Jl 74; (2003) 28(5) Alternative Law Journal 242

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THE JUDGMENT OF THE

This important judgment has made a significant contribution to the development of

The proceedings of the Tribunal[22]

1. Enduring Physical Suffering

3. Ongoing Psychological Harm

4. Harm to Intimate Relationships and Social/Community Life

6. Poverty and Social/Economic hardship

International criminal law

[I]ndications of enslavement include elements of control and ownership; the restriction or

[*] Tina Dolgopol teaches law at Flinders University of South

© 2003 Tina Dolgopol

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