"Trostfrauen", Wiedergutmachung und Menschenrechte
Tribunal 2000 und Urteil 2001 Den Haag
"Confort Women" - "Trostfrauen"
Tribunal im Jahre 2000 und Urteil 2001 in Den Haag
Sexsklavinnen für Japans Soldaten im II. Weltkrieg
Am 4. Dezmber 2001 in Den Haag nach der Verkündigung des Urteils
"… 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.'' (Paragraph 1094, Judgement)
The Tribunal's final Judgement issued at The Hague, the Netherlands, was huge in volume, consisting of eight parts, and 1094 paragraphs (265 pages). The Judgement provides integral historical and legal analyses from gender perspective of the crimes of Japan's military sexual slavery, which was not brought to justice by the post-war Tokyo Trial (International Military Tribunal for the Far East). It finds that the actions and inactions of the Japanese government, including the concealment of the related documents, the denials of the official involvement of the government and military, and the failure to provide meaningful apology and compensation, constitute continuous violations of its own obligations under international law. The Judgment finally elaborates a detailed list of recommendations, not only to the government of Japan but also to the former Allied countries.
Part 1 INTRODUCTION AND BACKGROUND OF THE PROCEEDINGS
Part 2 FACTUAL FINDINGS
Part 3 APPLICABLE LAW
Part 4 INDIVIDUAL CRIMINAL RESPONSIBILITY
Part 5 LEGAL FINDINGS AND VERDICTS
Part 6 STATE RESPONSIBILITY
Part 7 REPARATIONS (including recommendations)
Part 8 CONCLUISION
1086 The Tribunal holds that in order to fulfill its responsibility, the government of Japan must provide each of the following remedial measures:
I. 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.
4. Establish a mechanism for the thorough investigation into the system of military sexual slavery, and allow for public access and historical preservation of the materials.
5. Consider, in consultation with the survivors, the establishment of a Truth and Reconciliation Commission that will create an historical record of the gender-based crimes committed during the war, transition, occupation, and colonisation.
6. Recognize and honor the victims and survivors through the creation of memorials, museums, and libraries dedicated to their memory and the promise of "never again."
7. Sponsor both formal and informal educational initiatives, including meaningful inclusion in textbooks at all levels and support for scholars and writers. Efforts should be made to educate the population and, particularly, the youth and future generations concerning the violations committed and the harm suffered: research should endeavour to examine the causes of the crimes, societies ignoring of the crimes, and ways to prevent reoccurrence.
8. Support training in the relationship between the military and gender inequality and the prerequisites for realizing gender equality and respect for the equality of all the people of the region.
9. Repatriate survivors who wish to be repatriated.
10. Disclose all documents or other material in its possession with regard to the "comfort stations."
11. Identify and punish principal perpetrators involved in the establishment and recruitment of the "comfort stations."
12. Locate and return the remains of the deceased upon the request of family members or close associates.
1087 The Tribunal further recommends that the former Allied nations:
1. Immediately declassify all military and governmental records concerning the establishment and operation of the "comfort system" and the reasons why it was not prosecuted before IMTFE International Military Tribunal for the Far East.
2. Immediately declassify all military and governmental records concerning the failure to prosecute the Emperor HIROHITO before the IMTFE.
3. Acknowledge their own failures to investigate and prosecute the crimes committed against the former "comfort women" initially in the post war trials and in the intervening 56 years, and take Measures to investigate, disclose and, in appropriate cases, prosecute surviving perpetrators.
1088 The Tribunal further recommends that the United Nations and all the states thereof:
I. Take all steps necessary to ensure that the government of Japan provides full reparations to the survivors and other victims and those entitled to recover on account of the violations committed against them.
2. Seek an advisory opinion of the International Court of Justice as to the illegality and concerning liability of the government of Japan in regards to the former "comfort women."
* Compare the quotation of James Russel Lowell, “Truth forever on the scaffold. Wrong forever on the throne.”
Laws applied at the International Women's War Crimes Tribunal
"In order to avoid violating the principle of ‘nullum crimen sine lege’, the Judges adjudicate the criminal responsibility of the accused in accordance with the law as it existed at the time the acts occurred." [Paragraph 478, Part III, Final Judgement]
Concerning the crimes committed by the members of Japanese military, the Tokyo Trial (International Military Tribunal for the Far East, IMFTE) and other military tribunals subsequent to WW2 dealing with war crimes and crimes against humanity (Classes B and C trials) held in different parts of Asia subsequent to WW2 prosecuted the individuals who had committed those acts or those who were responsible for them. Some of the Classes B and C trials prosecuted crimes of rape. The system of "comfort stations" or military sexual slavery, however, was kept mostly outside these arenas. Even in the few cases where "enforced prostitution" or "sexual enslavement" was put to light or mentioned, never was the whole picture made clear, nor were those who had been responsible brought to justice.
There are several fundamental legal principles in criminal law, such as the prohibition of retroactive application of the law. The Women's Tribunal abode by these principles, examined voluminous testimonies and evidence, and made clear which law was applicable in determining the question of criminal responsibility before the Tribunal, as follows:
• The Government of Japan, accepting the jurisdiction and decisions made by the Tokyo Trial through the San Francisco Peace Treaty, is in the position to accept that crimes of sexual violence which fall within "war crimes" and "crimes against humanity" (Article 5, IMTFE) are prosecuted.
• The principles stipulated in the 1907 Hague Convention on Land Warfare and the subsequent development of the law show that the category of "crimes against humanity" as an international crime had been established by the time of WW2.
• In light of international agreements and practice prohibiting and criminalizing such conducts as forced labour, trafficking, enforced prostitution and rape in armed conflict, as seen in the 1926 Slavery Convention, Japan's military sexual slavery committed on a large scale and in a systematic manner clearly constituted "crimes against humanity" at the time of offence itself.
• Concerning "war crimes" and "crimes against humanity", not only the principle of "individual responsibility" of a person who was involved directly or indirectly in a crime in some way, but also the principle of "superior responsibility" of a person who knew or had reason to know the crime but failed to prevent and/or to investigate and prosecute the crime was often applied in the criminal trials subsequent to WW2. This principle of "superior responsibility" had been established in the Lieber Code of 1863 and the subsequent development of the law by the time of WW2.
Having made clear the law as established at the time, the Tribunal examined the criminal facts and responsibility regarding each individual defendant in light of the evidence submitted to the Tribunal. The issues for defense the defendants would have raised were brought to the Tribunal's attention by the amicus curiae. These issues included, added to the issues already discussed above: due process; double jeopardy; whether the women's activities were "voluntary"; head of state/sovereign immunity; and statute of limitations.
Having examined all these issues, the Tribunal rendered its judgment and verdicts what were the crimes committed and what responsibility each defendant had over the crimes according to the international law of the time when the "comfort stations" were set up and made use of.
"Repeatedly in history, states have ignored crimes of sexual and gender violence committed against women in armed conflict. This failure is particularly reprehensible where justice is provided for other offenses." [Paragraph 1089, Part VIII, Final Judgment]