The “Comfort Women” and Their Right to the Truth

Introduction

The Imperial Japanese Army forced young women from Korea, The Philippines, Vietnam, China, and other occupied countries into sexual slavery before and during World War II. These victims, who some scholars believe to number up to 500,000,  are euphemistically referred to as the “Comfort Women.” Due to severe physical and psychological abuse, several “Comfort Women” lost their lives or committed suicide.

Japan’s insufficient acceptance of responsibility for the mass atrocity during World War II is the subject of international legal and political controversy. The State considers the issue of reparations settled with the 1951 San Francisco Peace Treaty and other bilateral agreements which formally ended World War II and restored Japan’s sovereignty. The Peace Treaty dealt with reparations and compensation for the war damages inflicted by Japan. At the time the treaty was signed, the specific amounts of reparations and the number of claimant countries were not established. As a result, Japan was required to negotiate separately with each country.

Other countries that were occupied accepted what some view as inadequate reparations. For example, the Philippine government accepted the Peace Treaty as a means for Japan to resolve its reparations obligations, considering it a formal closure on the issue. Other institutions, however, reacted to the Philippine government’s attitude. The Committee on the Elimination of Discrimination against Women (CEDAW), for instance, issued a decision on March 8th, 2023, stating that The Philippines violated its responsibility under the Convention by accepting the Treaty and by failing to push reparations for the Philippines “Comfort Women.” Other countries have also attempted to address the impact of Japan’s 35-year occupation. South Korea has proposed compensating individuals who were forced to work in Japanese factories during this period, in an effort which aims to resolve the persistent dispute over wartime compensation and improve diplomatic, political, and economic relations between South Korea and Japan. However, the plan has been criticised for its potential shortcomings in addressing corporate accountability and ensuring victims receive prompt and adequate reparations.

Regarding compensation as a form of reparation, the victims may receive it under the Peace Treaty. Japan established the Asian Women’s Fund in 1995, along with “atonement” money funded through donations from Japanese people. However, these funds were criticised for their alleged selectivity and were seen as insufficient reparations efforts on the part of  Japan. Moreover, the groups who have been advocating for the survivors as well as victims themselves were never consulted during the creation of this Peace Treaty. This incompetent form of reparation represents a violation of the “Comfort Women’s” Right to Justice.

Regarding satisfaction as a form of reparation, there is notable criticism from scholars about Japan’s failure to acknowledge the internationally wrongful act. Although this is not yet explicitly framed as a violation of a human right per se, such as a denial of the Rights to Justice or Truth, modern justice frameworks do recognise its significance. This implies the importance of not only financial compensation, but also the victims’ sense of receiving a formal apology. However, incorporating non-monetary apologies into international legal remedies can be problematic. This article contends that Japan’s lack of formal acknowledgement or apology for the crimes committed against the “Comfort Women” undermines their Right to the Truth.

The Right to the Truth of the “Comfort Women”

Satisfaction is a recognised form of reparation according to Art. 37(2) of the 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), Art. 41 of the 1953 European Convention on Human Rights, and Principle 22 of the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles). These relatively wide notions of “satisfaction” include the terms “acknowledgement,” “apology,” and “truth.” Acknowledgement consists of taking ownership of the wrongful act, and it may occur through official public statements or declarations during judicial proceedings. An apology from the state would include the acknowledging of the wrongdoing, as well as an expression of regret. However, apologies have been criticised as a form of reparation since they may carry doubts regarding their genuineness. As a result, human rights law focuses on demanding the outward doing or performance of certain activities rather than inner transformation. This entails that apologies should aim to restore the survivors’ honour, reputation, or dignity.

Regarding truth, it is argued that it serves as both a separate type of reparation and a required component of acknowledgement. The Right to the Truth has also been recognised as a separate human right following Art. 24(2) of the 2010 International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), Principle 22(b)(c) of the Basic Principles, as well as jurisprudence issued by the Inter-American Court of Human Rights, and the European Court of Human Rights. This Right consists of the state’s duty to

inform victims, their families, or even society as a whole about the facts surrounding major violations of human rights. The fundamental idea is that, in contrast to persistent falsehoods, unbelief and silence, acknowledging the truth after a major crime has great significance for the victims. The Right to the Truth could become a valuable symbolic instrument for the victims when informing the relatives of their whereabouts or remains, discovering new factual evidence, and permitting investigations and subsequent judicial proceedings.

In this context, the ARSIWA, adopted by the International Law Commission, combine elements of codification with progressive development. Even though this instrumentum is not binding per se, its content might be binding when reflecting customary international law. The International Court of Justice has even cited some as being the customary international law on state responsibility. While the 2005 Basic Principles are “soft law,” the General Assembly recommended that States take them into account, and some scholars hope these eventually become binding custom. Moreover, Japan’s ratification of the ICPPED in 2009 further commits the state to uphold the Right to the Truth and to provide effective remedies, including reparations, for victims of enforced disappearances.

The reason “Comfort Women” survivors reject the apologies which the Japanese government has so far provided is due to their inner dimension. Victims and relevant human rights institutions have described Japan’s apologies as inadequate, inconsistent, and insincere. The 2001 Tokyo Women’s Tribunal (TWT) was an international people’s tribunal, a non-governmental body established to investigate and adjudicate serious human rights violations outside the formal judicial systems. This Tribunal assessed the large-scale sexual abuse and enslavement of these “Comfort Women,” and criticised the Japanese delegates’ apologies because these were not fully supported by an admission of legal responsibility and due procedure. The final statement of a people’s tribunal as such, even though not legally binding judgments, may fill gaps in official accountability and foster solidarity while also recording and preserving experiences that might otherwise remain unacknowledged. This TWT statement further highlighted that Japan’s apologies were offered to the public at large in political and diplomatic contexts rather than addressing the survivors personally or individually. The Tribunal also noted that considering earlier official Japanese declarations referring to “Comfort Women” as “prostitutes,” the Japanese State’s evasive expressions of apology are particularly disrespectful. Therefore, these contradictory statements of Japanese State authorities raise questions about whether these expressed regrets are sincere and the result of genuine change rather than political pressure.

Conclusion

The Right to the Truth may be breached due to inadequate forms of reparation under Public International Law, which are tied to non-monetary violations of State Responsibility. The idea of having a Right to the Truth strikes people as both utopian and simple, nevertheless vital. In the case at hand, victims have requested an official apology accompanied by the Japanese Cabinet’s resolution, rather than a mere declaration constructed by one leader’s personal view, such as the Prime Minister’s letter. These mere apologies and the continued lack of formal satisfaction, still constitute a denial of not just the Right to Justice, but the Right to the Truth of the “Comfort Women.

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