This contribution will discuss the case of forced labour, including sexual slavery, inflicted by Japan during World War II in several Asian countries, as it developed in the ILO between 1994 and now. Furthermore, it will try to answer three questions:

-          first, what is the significance of the work, done in the ILO, for those who try to find justice for the victims after so many years? I will concentrate on what I consider to be the most important part of that work, i.e. the analysis and the conclusions and recommendations of the Committee of Experts;

-          secondly, why has this work, which I consider to be valuable, so far not yielded concrete results?; and

-           thirdly, what are the perspectives for further development of the case as it stands now?

2.     The case of war-time forced labour and Japan in the ILO

After the presentation of the Osaka Fu Special English Teachers’ Union (OFSET) in 1994 and the first, brief, comments by the Committee of Experts in their report to the 83^rd Session of the International Labour Conference in 1995, other trade unions from Japan, Korea and The Netherlands addressed the alleged violations of Convention 29 by Japan.  The Korean and Dutch unions tried to put the case on the list of countries, criticized by the Committee of Experts in their report, which  the Committee on the Application of Conventions and Recommendations of the International Labour Conference invites for a dialogue on the “difficulties they experience in fulfilling their obligations under ratified Conventions.”

That Committee, the largest of the annual Labour Conference, work on the basis of the Experts’ report. Its members are not legal experts but rather representatives of the Governments, employers’ federations and trade unions of the Member States. Their debates are certainly more “political” than the texts of the Committee of Experts, and often contain a lot of information on the application in practice of the Convention under discussion which was not available to the Experts when they wrote their report, but the latter’s authoritative legal positions are, as a rule’ an effective antidote against “politicization” which is too often manifest in other human rights bodies in the United Nations’ system.

The list of countries, usually 25, contains cases which the Committee considers to be of particular interest. One of the criteria used to select countries is the importance attached to the case by the Committee of Experts. They can express this in several ways, i.e. by the length and the degree of detail of their comments. (NB: in 2002 the Committee of Experts devoted the exceptional space of fifteen pages on the Japan/Convention 29-case in that year’s report to the International Labour Conference). The list always contains a mix of “human rights” and “technical” Conventions. Governments usually are not happy being on it (although also “cases of progress” are listed) but although the dialogue can be difficult and at times sharp, it is clear that the Conference Committee is not a tribunal.

The Experts have stated, right from the start, that the case brought forward by OFSET fell within the prohibitions on forced labour contained in Convention No. 29 and that Japan had violated the Convention which it voluntarily had ratified. At the same time they took the position that they did not have the power to order the relief sought,  but that this was the responsibility of the Government. They did say that they thought that the “unacceptable abuses” should give rise to “appropriate compensation”. The relevant  penalties  mentioned by Japanese law (dating from 1907) were to be adequately and strictly enforced.

The Experts refrained from expressing any legal view on whether individual claims have or have not been extinguished by bilateral and multilateral international treaties as they did not have any mandate to rule on this issue.

One thing, however, is very clear: from the outset they have said that they thought that the Government of Japan should meet with the victims and/or their representatives and take its responsibilities for the measures necessary to meet their expectations. That point has been made consistently during the past fourteen years, over and over again.

This recommendation may seem very reasonable and perhaps even rather modest, but the Government of Japan, the main trade union confederation and the employers’ federation have fought it with a determination which sometimes degenerated into naked rage and fanaticism.

 In the trade union corner of the ILO the confederation RENGO were convinced, eventually, after long and extremely bitter discussions, that they should accept the wish of the overwhelming majority of their colleagues that the case qualified for “the list” and for discussion in the Conference Committee on the Application of Conventions. Nevertheless, they have continued to support their Government relentlessly  in its polemics against the Committee of Experts and its resistance against a discussion of the case at the International Labour Conference. This is remarkable, as RENGO is undisputedly a free and independent trade union. There have been several occasions in the past when they attacked their Government on violations of other human rights Conventions of the ILO, dealing with fundamental workers’ and trade union rights, or equal treatment.

At one time,  it seemed that the workers’ side had succeeded in winning the argument by breaking the opposition of the Japanese employers’ representatives and thereby securing the support of the full employers’ group to put Japan on the list. However, at the very last moment Government disciplined him and saved their skin. In the Conference Committee on the Application of Conventions, agreement between workers and employers is enough to get things through, even if a Government is strongly opposed.

Since then, the workers’ group had invariably called for a discussion of the case and the employers have refused to give their support to the proposal. The case is in limbo. A recent effort made by the workers during the three weeks of the International Labour Conference  to find a way out of the deadlock  by means of  informal tripartite discussions was ignored by the Government of Japan and the employers’ group. In June last, the workers’ group announced  that they will propose the case for inclusion in the list for the Conference of next year, just as they had done previously.

3.      Importance of the work of the ILO

At first sight the result of fifteen years of continuing struggle in Geneva by (particularly) the Korean and Dutch trade unions has yielded only modest results: a recommendation to the Government to sit down with the victims and their representatives in order to find a solution acceptable to them as regards the issues of compensation and an official apology by the Government.

Modest, perhaps, but pertinent too. For the Government of Japan it is clearly too pertinent. They have done their utmost to kill it off and bury it, but so far they failed. All their arguments why they ILO should not deal with the case have been refuted by the Committee of Experts. The only point on which the Experts have not expressed themselves is the  problem of the settlement of individual claims by international treaties for reasons given above, but here they have referred to and cited the well known and authoritative reports of Mrs McDougall and Mrs Coomaraswamy in an affirmative way.

The main value of the work done in the ILO is in this pertinence as well as in the tenacity of the Committee of Experts. Once they have come to grips with an issue, they will not let it slip out of their hands. The Government of Japan knows that. Every two years, they will have to report to the ILO on the “progress made”, and if  such progress cannot be recorded by the Experts the criticism will continue.  In due time it will sharpen, certainly in the light of this particular  case:  the Experts have repeatedly mentioned  the advanced age of the victims and the fact that many of them have passed away in recent years, and have therefore called for expedient action.

4.     The lack of concrete results

Progress in human rights cases  dealt with by international organizations is usually slow, and the ILO is no exception. However it can show an impressive record built up in the almost ninety years of its existence, even though it is lacking the instrument of sanctions. In most cases, Governments decide to give in and to follow the recommendations of the organization, sometimes with its technical assistance. Sometimes, one has to wait very long, like in the case of countries with communist regimes where change in the application of the human rights Conventions took many decades.  Burma is a conspicuous current example.

Chances for change are smallest when an issue gets politicized- and that is exactly the case with this one. I do not exclude that the Japanese trade union which made the submission to the ILO in 1994 had motives which were –at least partially- more inspired by domestic motives than by compassion with the victims and the desire for justice. However, if that played a role the Committee of Experts has sorted that out. They have dealt with the case on the basis of its legal merits only and they have continued to do so. Then the politicizing within the ILO started- by the Government of Japan.

What I mean by the term in this context is exerting pressure at the highest administrative level of the ILO and of the Department of International Labour Standards of the organization, which prepares the work for, among others, the Committee of Experts. It is a highly interesting question, but impossible to answer, if this pressure has led to the shorter and less detailed texts in the Experts’ reports following the extraordinary one of 2002. One could of course argue that in that particular  year everything which could possibly  be said about the case has been said, and that afterwards it sufficed to reiterate the essential points, which the Experts have done. However, my personal impression (based on close observation of developments in the International Labour Office) is that the Government has succeeded in leaving their mark by means of an aggressive approach in which references to Japan’s status as one of the major financial contributors to the organization  have been an important element.

Once again: it is difficult to prove, but if the case had concerned another country than one of the prominent and richest members of the United Nations’ family, the Committee of Experts might not had left it at this point of time at their valuable recommendation to the Government to try and seek a settlement with the victims and their representatives. By now, after fifteen years of foot dragging, taking also into account the skirmishes in the Conference Committee on the Application of Conventions about putting Japan on the list, they might have proposed to the Government to accept the assistance of the ILO, or to receive an ILO mission to discuss ways and means to make progress.

5.     Concluding remarks, perspectives

Is there a way forward? Is there any real perspective for progress at all?

I think that the answer to both questions is yes. The way forward has a clear starting point: the recommendation of the ILO Committee of Experts. There are few in the ILO, I think none except for the Japanese constituents, who would call it unreasonable. How, then, can progress be made from there?

I think that it will be difficult but feasible.

There is,  first and foremost, a  role for the surviving victims and those who represent them, as well as all those victims who are not alive any more. It is important that they tell the Committee of Experts, the Government of Japan, and the employers and trade unions of that country that they attach great importance to a meeting with the Government as proposed by the Committee of Experts.

 The organizations representing and supporting them should, in my view, report relevant activities (in courts, in demonstrations, etc.) to the ILO.

 It is true, they do not have direct access to the supervisory system of  the organization, but they can get access nevertheless through Governments, employers and trade union in the ILO. Dutch victims and their representatives have done so, those in Indonesia, Korea and the Philippines could do the same. (China and Taiwan is a different matter: the Chinese employers’ federations and the trade union confederation are not independent organizations, and Taiwan is not a member of the ILO).

 In addition to feeding relevant information into the system, to which the Committee of Experts can react and which will give those who are trying to involve the Government of Japan in a dialogue in the Committee on the Application of Conventions of the International Labour Government fresh ammunition, they could approach the trade unions, but in particular  the employers’ organizations in their countries federations and try to convince them to start a debate in the employers’ group of the ILO with a view to break the taboo imposed by the Japanese employers.

 They could further  discuss the attitude and the behavior of the Government of Japan, i.e. their politicization of the war-time forced labour issue, with their own Governments and request them to seek ways and means to neutralize the Japanese interventions in the International Labour office. These  are delicate diplomatic exercises, certainly, but it can be done. Governments can approach them individually, but also jointly.

The above explains why it is so  important to win over the employers’ group. Employers’ organizations from the countries mentioned will say that this is not a matter which is clearly in their mandate, and that it will be very difficult if not impossible to overrule their Japanese colleagues. The answer to that is that the situation was and is not different in the workers’ group. The Korean and Dutch unions were pleading, in the early years of the case in the ILO, against an overwhelming majority in their group who supported the Japanese union. Their international federation, too, strongly discouraged their effort and changed that attitude only after ten years.

The ILO, and in particular the Committee of Experts, should in my view engage in a dialogue on the case with other UN bodies dealing with human rights questions. Some of them have already discussed  it. So far, the exchange of information among these institutions leaves much to be desired. These deficiencies have been discussed in the ILO in the past, in general terms, and a few things have improved since. A systematic fine-tuning operation still has to be made. In this respect, too, the organizations representing victims (which know these institutions and have lobbied them for many years) can play a profiled and  useful role.