Laws applied at the International Women's War Crimes Tribunal
[Paragraph 478, Part III, Final Judgement]
Am 4. Dezmber 2001 in Den Haag nach der Verkündigung des Urteils
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]