Since then, this issue has been greatly discussed by international lawyers.  I had to work nearly fulltime for several years for this issue.

              In May 1992, following our NGOs interventions on the issue of “comfort women”, the Working Group of Contemporary Forms of Slavery of the Sub-Commission on Human Rights made a small recommendation to the Secretary General.  He was advised by the WG that the information received by the WG should be sent to the UN Special Raporteur on the Right to Reparation for the Victims of Gross Violations of Human Rights, Prof. Theo van Boven.  I still remember the day, when I flew to Maastricht in order to convey this information to Prof. van Boven as swiftly as possible.  I appreciate very much for his kind reception of me. This was supported by the Sub-Commission on Human Rights in August of that year.  It was the first official criticism against Japan as regards human rights by the UN after the war and it triggered a series of resolutions of the WGCFS, the Sub-Commission and Commission on Human Rights.

              Later, the Special Raporteur on the Right to Reparation, Mr. van Boven made his report and advised the Sub-Commission to address the issue of “comfort women”.

1-2. Historical background of the issue of “comfort women”

The International Fellowship of Reconciliation (IFOR) submitted a NGO written statement to the 1993 U.N. Commission on Human Rights.   The subject matter was the 1905 Protectorate Treaty, which was forced by coercion on the Korean ministers by Japan and that IFOR believed that it did not take effect.  It was so dangerously controversial that the speaker, the drafter of this written statement was advised by a Japanese senior journalist and a Diet Member’s office not to disclose the identity of its author.

1-2-2

It was understood that the Japanese Government before the Tokyo District Court, was demanding some of the survivor Korean women victims of sexual slavery, who went to court, to prove the unlawfulness of the enslavement under the Japanese law of that time.

1-2-3 .

The IFOR focused on this point. In our opinion, it was the Japanese Government's duty to prove the reason why this enslavement was claimed to be lawful under international law. It was done using coercion violating international law, even if the Japanese law legalized the enslavement of the victims.  This was one of the important principles, which were confirmed by the Nuremberg and Far East Military Tribunals.

1-2-4.

This issue seems to have not been seriously discussed as yet by Japanese lawyers.

Korea was a sovereign Empire in 1905, Japan demanded that Korea should accept the Japanese proposal of a protectorate treaty. The Korean Empire, however, resisted the Imperial Japanese Government's demand to be a protectorate of Japan. According to historians, "Japan sent its elder statesman, Ito Hirobumi, to conclude the protectorate treaty. Ito entered the palace with an escort of Japanese troops, threatened Kojong and his minister, and demanded that they accept the draft treaty Japan had prepared, When the Korean officials refused, Prime Minister Han Kyu-sol, who had expressed the most violent opposition, was dragged from the chamber by Japanese gendarmes. Japanese soldiers then went to the foreign ministry to bring its official seal, which then was affixed to the document by Japanese hands, on November 17, 1905." . The treaty was signed by then Korean Foreign Minister and it was not ratified by both Emperors.

The treaty consisted of five provisions that deprived Korea of its sovereignty and independence at all and that made a Resident General appointed by the Japanese Emperor become the substantial ruler of Korea.  Hereafter, despite desperate attempts by Emperor Kojong Korea's requests for help from the western nations or the international community to recover independence were all ignored and failed,

He sent three secret Korean envoys, including Yi Jun, to the 1907 Hague Peace Conference.  They were blocked by the Japanese diplomacy, however, and could not formally speak before the conference.  Sadly, Yi Jun passed away in The Hague.

Because of this treaty, even Emperor Kojong's Cabinet meetings and decisions were dominated by the first Resident General Ito, The Resident General forced Emperor Kojong to abdicate in favor of his son in 1907.

The IFOR believed that this treaty did not take effect because of the following reasons: The 1963 United Nation International Law Commission's report states "There appears to be general agreement that acts of coercion or threats applied to individuals with respect to their own persons or in their personal capacity in order to procure the signature, ratification, acceptance or approval of a treaty will necessarily justify the State in invoking the nullity of the treaty." This statement as regards customary international law was supported generally by international lawyers since the 19th century. In fact, Art. 51 of the Law of Treaties later confirmed that such a consent to treaty obtained by coercion to individuals did not take any effect. Art. 51 provides "the expression of a State's consent to be bound by a treaty which has been produced by the coercion of its representative through acts or threats directed against him shall be without legal effect."

Moreover, the ILC raised this case of the 1905 Protectorate Treaty of Korea by Japan as one of four major examples of this kind in history, where treaties did not take any effect because of coercion of representatives.  The legitimacy of the Japanese colonial rule and the Japanese Imperial law, which was applied later in Korea was based on this treaty.

As a result, even if one supposed that the Japanese Government's argument was right concerning the lawfulness of the acts under the Japanese law, this was meaningless. The IFOR believed that the Japanese law as a whole, which was applied in Korean Peninsula during the time of the Japanese occupation, namely from 1905 onward was null and void under international law.

2. A summary report on the UN debates

2-2. The Counter Arguments made by the Japanese Government

              The Japanese Government repeatedly argued that the UN had no capacity of dealing with this issue, as the UN was created after the actions by the Japanese military; that the case was too old and out of time limitation; that slavery was not customary international law at the time of conducts; and that Japan faithfully observed all the treaties including the 1951 San Francisco Peace Treaty and other bilateral treaties and agreements in relation to compensation for any victims.

2-3. UN Jurisdiction on Slavery

              The Japanese government argued that the UN had no capacity of dealing with this issue, as the UN was created after the actions by the Japanese military before in many UN meetings, including the working groups, the Commission or the Sub-Commission on Human Rights.  This could have silenced any NGOs’ interventions at the UN, if it had been successfully accepted by the UN.  I argued that the UN succeeded the capacity of dealing with slavery from the League of Nations, which had jurisdiction over the issue of “comfort women”.

The first big fight took place at the Vienna World Conference on Human Rights in 1993.  The Japanese government cunningly maneuvered in the drafting stage and tried to limit the scope of the Vienna Declaration and Programmed of Action only for the case of the “current” violations. 

If this draft had been accepted by the UN, then, we, NGOs would have been instructed by chairpersons not to speak about the past cases such as “comfort women”.  We found this one word “current” in the lengthy draft documents just before our departure to Vienna.  We, a small number of NGO representatives fought enormously hard and fortunately could win. Governments, in that document, declared that "violations of the human rights of women in situations of armed conflicts are violations of the fundamental principles of international human rights and humanitarian law", and that “all” violations of this kind -- including murder, systematic rape, sexual slavery and forced pregnancy -- "require a particularly effective response".

2-4. The Actions made by the UN bodies

Not only the International Commission of Jurists but also the UN special reporters, the ILO Committee of Experts and the Women's International War Crimes Tribunal on Japan's Military Sexual Slavery (WIWCT ) recommended that the Japanese government take concrete actions, which included fact-finding, admission of the facts and guilt and state compensation to the women victims.  The UN special reporters as well as the WIWCT pointed out that Japan still has duties to punish perpetrators of war crimes and crimes against humanity as regards the war time military violence against women.

              In 1996, the Addendum (UN Doc. E/CN.4/1996/53/Add.1) of the first report to the Commission on Human Rights was made, on the basis of the “van Boven Principles” by Ms. Radhika Coomaraswamy the Special Raporteur on Violence Against Women focused on the military sexual slavery by Japan.

              In 1998, in the appendix to the Final Report on systematic rape, sexual slavery and slavery-like practices during armed conflict (UN Doc. E/CN.4/Sub.2/1998/13.) submitted by the Special Raporteur on systematic rape, sexual slavery and slavery-like practices during armed conflict to the UN Sub-Commission of Human Rights, Ms. Gay McDougall found that the acts committed by the Japanese military onto the “comfort women”, military sexual slavery victims constituted many violations of international law, war crimes and crimes against humanity and she recommended the Japanese government investigation of the facts, punishment of the perpetrators, admission of the facts, a formal apology, direct compensation to the individual victims and other measures.

2-5. The Attitude of the Japanese Government

Let me briefly summarize the current attitude of the Japanese government.

Firstly, the Japanese government has stubbornly been refusing compensation by the state and they did not change their policy to support payment from private funds, namely “the Asian Women’s Fund” payment only on unjustifiable grounds such as the “treaty defense” .  The AWF met strong protest and refusal from overwhelming majority of victims and their supporters.  It failed in achieving reconciliation because of its ambiguous nature, whether it represented the state of Japan or the general public and lack of sincerity in the negotiation process with the victims.  It was finally disbanded in March 2007.

Secondly, the Japanese courts, except for only one in favor of the victims, namely the famous judgment made by the Yamaguchi District Court, refused all demands for compensation that were filed by the victims including those from Former Dutch East Indies.  The single exceptional victory of the victims was reversed by the Hiroshima High Court   The appeal against it was then turned down by the Supreme Court on 25th March 2003.

3.  Truth as a vital basis for reconciliation

3-2. New arguments raised by Former PM Shinzo. Abe

              BBC News  reported on 2 March 2007 (12:00 GMT) that Mr. “Shinzo Abe was responding to a US Congressional resolution” and that “Japan's Prime Minister Shinzo Abe has said there is no evidence that women were forced to become sex slaves by the Japanese army during World War II.”  The Washington post criticized Mr. Abe for “Shinzo Abe's Double Talk on March 24, 2007 (Page A16): “He's passionate about Japanese victims of North Korea -- and blind to Japan's own war crimes.”

First, I wish to request the Japanese government to examine the basic evidence presented by the leading scholars and some reliable organizations. Good evidence might make forces of persuasiveness, even if it was presented by only one person.  Testimonies of the victims were well researched by Korean scholars.  Japanese historians' researches were submitted to the UN WGCFS.  Sound and well developed legal arguments could have also strong forces.  A mission report by the International Commission of Jurists gave a strong impact to the UN and world public opinion.  The Dutch Temporary Military Tribunal of East Indie punished the Japanese perpetrators, who coerced the Dutch women victims into military sexual slavery.

Second, the Japanese government might agree with the Statement by then Chief Cabinet Secretary Yohei Kono of August 4, 1993 on the result of the study on the issue of "comfort women".  In it, Mr. Kono admitted that “in many cases they were recruited against their own will, through coaxing coercion, etc., and that, at times, administrative/military personnel directly took part in the recruitments. They lived in misery at comfort stations under a coercive atmosphere.”

Third, the Japanese government might argue that official documents of Japan are not available.  Most of them were destroyed by the Japanese military and government, when Japan surrendered.  The speaker wishes, however, to present certain official evidence as early as 1936 that the government of Japan did know the criminal nature of the “comfort station” operation.

3-3. The finding of a success story as early as 1936

The speaker’s article published in English is the basis of today’s presentation.  Its summery was submitted to the UN in July 2004.

Could the legal system of the Japanese Empire in 1930s have reversed its military’s attempt to continue the practice of sexual slavery?  In order to answer this question, the speaker wishes to stress the importance of his recent findings. 

The speaker luckily found and obtained the earliest district court and appeal court judgments of the Japanese criminal court against ten private entrepreneurs, who deceived and trafficked in 15 Japanese women in Nagasaki to a Japanese Naval "comfort station" in Shanghai, China.  These lower courts' judgments in 1936 have been  possessed by nobody but the Japanese government, which neither submitted them to the Diet nor to the Korean government, although they publicly promised to make a through investigation for both of them.

The Nagasaki District Court Judgment issued on 14th February 1936 by a panel of three judges of the Criminal Division of the Nagasaki District Court clearly shows the following facts.

              The defendants were ten Japanese, who belonged to a group of eight men and two women living in Nagasaki except for one man, who lived in Shanghai.

The judges found that all defendants under a series of conspiracies deceived and trafficked in 15 Japanese women in Nagasaki to a Japanese Naval "comfort station" in Shanghai, China and that they were guilty of committing crimes defined by Art. 226 (1) and (2) of the Penal Code.

The pattern of recruitment is strikingly similar to the many Korean cases of abductions of women.

The legal basis of the judgment was Art. 226 (1) and (2) of the Penal Code.  This article could be enough in substance to implement the provisions of international law, namely three instruments against trafficking in adult women for prostitution .

3-4. Limitations of the judicial system

The judgment dated 28th September 1936 of the Nagasaki Appeal Court basically supported the Nagasaki District Court Judgment, although it reduced the periods of penal servitude for five of eight appellants.  The Supreme Court judgment dated 5th March 1937 turned down the further appeal made by the seven appellants (defendants).

3-5. De facto impunity by the administration

Instead of suppressing the trafficking in such women, the Home Ministry, which controlled police decided to tolerate it, as it was regarded as a necessary evil.   It is clear that the Home Ministry knew international law provisions.  The note ordered that those, who claimed any involvement of Imperial Forces, had to be suppressed in order to keep honor of the Imperial Forces.  It was cunningly formulated, however, so that any persons, who were ordered by military to transport such women to China, could do so insofar as they concealed the facts that they were working for military and that the destination was military “comfort stations”.  Thus, all women recruited to military “comfort stations” had necessarily to be deceived.  As a result, all cases of trafficking in women to military “comfort stations” inevitably constituted crimes of abduction by way of deception, in violation of Art. 226 of the Penal Code.

This was soon followed by one of the key military documents, a notice entitled “Matters Concerning the Recruitment of Women to Work in Military Comfort Stations,” issued on March 4, 1938 by an adjutant in the Ministry of War.”   The Ministry of War ordered that “This task will be performed in close cooperation with the military police or local police force of the area.”  This was so ordered “for preserving the honor of the army and avoiding social problems.”

Thus, the system for de facto impunity was completed.

4. Proposals for a legislative solution by the National Diet

4-1．A way towards legislative solution

The proposals made by the Diet Members of the opposition parties for a state apology by legislation of the Japanese National Diet for state payment were successfully submitted to the House of Councilors and proved that such legislation would not violate any international law or the Constitution.  They have been, however, blocked by the conservative Diet Members supporting the government.

Being encouraged by the resolutions addressed to Japan for its state apologies to the victims made the legislatures of the USA, EU, the Netherlands and Canada in 2007, the same bill was submitted to the Diet on 12 June 2008.  It was, however, was aborted at the end of the Diet Session because of non-cooperation from the ruling parties.  No report was made by the government to the Human Rights Committee on such Diet Members’ efforts .

There exists a way out towards legislative solution.  It is the lack of political will in the government for apology to the victims that blocks the hope for the solution. 

The translation of the Bill is attached at the end of this paper.  All supporting groups of the victims in the victimized countries such as the ROK are welcoming this Bill.  As a result, there is a strong hope that this issue is voluntarily settled by the National Diet of Japan.

The legislative proposals submitted by the Diet Members of the opposition parties to the House of Representatives for state investigation of the sufferings during war time have been also blocked by the conservative Diet Members supporting the government .

4-2. The people may be encouraged to make a decision:

The people in Japan chose the oppositions in the 2007 election of the House of Councilors and the people are to decide the policies of Japan in the next general election of the House of Representative.

I wish to request the participants to encourage not only the Government but also the National Diet as well as the people in Japan to work for solution of this issue through legislation.

5. What could we do for the future?

5-1. Grass root movements in Japan

              Being encouraged by the recommendations made by treaty bodies such as the CAT; the resolutions adopted by the legislatures of the USA, the Netherlands, Canada and the EU; as well as the world wide support such as Amnesty International, the grass root movements in Japan started moving forward despite the resistances from the conservatives.

              The speaker welcomes further encouragements and actions for the grass root people in Japan from the world community “in a spirit of brotherhood” (Article 1 of the UDHR).

              Such a process will make a real solution of the issue of “comfort women” and ensure “a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized” as the Article 28 of the UDHR.

5-2. The relationship between the USA and Japan

              The traditional diplomatic policies of Japan are based on the three pillars, namely the relationship with the USA, the UN and Asia.  The UN and Asia as well as the legislatures of the USA are becoming aware of this issue and encouraging Japan to make reconciliation.  Now, I wish the lest of the elements, the half of the first pillar, namely the administration of the USA.  If they become aware, alarmed and make friendly advise to Japan, I am confident that it will become easier for the Japanese administration to break the ice of refusal.

5-3. Gross violations of human rights

              In the UN process mentioned above, we, NGOs learned much from and assisted by the van Boven Principles.  One of the Japanese lawyers once said to me, “If these principles were really enforced, then no government would be able to wage any war”. The principles are not only helpful for the victims but also enormously important to create peace in the world indeed.  The UNGA adopted these principles in 2005 .  I am not aware of, however, any NGOs, governments or international organizations, which are seriously working for the enforcement of them yet.

              Could anyone here propose any possible proposals to focus on them?

5-4. Records are to be preserved

              It is important for the world to keep the records of any gross violations of human rights.  I saw very many cabinets containing hundreds of thousands files of the victims of Japanese military internment camps in former Dutch East Indies, namely the members of the Foundation of Japanese Honorary Debts.  Those files should be kept for the future to prove the history.

              I would like to request the Foundation, the government of Holland, and the international community  to work on this project.

5-5.  Could we strengthen the UN system further?

              There are other tasks surrounding this issue, in particular how best we could strengthen the UN and its human rights mechanism, which include women’s rights, human rights education, the newly created Human Rights Council, the OHCHR, the treaty bodies, International Criminal Courts, the International Court of Justice and the Permanent Court of Arbitration.