Chinese Comfort Women (33 page)

Figure 23
Gravestone erected by the Research Center for Chinese “Comfort Women” commemorating the life of Yang Wubang, a Hainan Island “comfort station” survivor who died on 31 August 2006, the day after the Tokyo District Court denied the Hainan victims’ claim for compensation.

In addition to the four cases described above, all of which were lodged by survivors in Mainland China, nine survivors from Taiwan filed a lawsuit against the Government of Japan in the Tokyo District Court on 14 July 1999, demanding 10 million
yen
(about US$80,300) per individual as compensation and an official apology.
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Taiwanese lawyers, Wang Ching-feng and Chuang Kuo-ming, and Japanese lawyer, Shimizu Yukiko led the legal team for the women. Reportedly, these women were lured into Japanese comfort stations between 1938 and 1945 by deceptive job offers and have suffered physically and mentally ever since. Huang A-tau, one of the plaintiffs, stated that she applied for a nurse’s job only to find herself forced into a brothel in China and then transferred to similar facilities in Indonesia and Burma, where
she remained until the end of the war. She stated that she returned to Taiwan but was too ashamed to tell her parents what had happened and has lived alone ever since.
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The Ministry of Foreign Affairs in Taiwan joined the lawyers in demanding compensation and an apology from the Japanese government. The ministry stated that, since 1992, the Taiwan government has commissioned private groups to investigate the situation of former comfort women. Their research shows that at least 766 Taiwanese women were forcefully conscripted as comfort women.
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The Taiwanese research group conducted oral interviews with fifty-eight women who pleaded their cases and confirmed that at least forty-eight of them had clearly been forced to work as comfort women. The government in Taiwan granted humanitarian aid of US$15,384 to each of the forty-two comfort women who were still alive and living in Taiwan.
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On 15 October 2002, the court handed down its initial verdict, rejecting the plaintiffs’ claims. By that time two of the plaintiffs had already died.
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The plaintiffs appealed to the Tokyo High Court, which denied their appeal on 9 February 2004. On 25 February 2005, the Japanese Supreme Court issued a final ruling dismissing the victims’ claims.
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On 26 February 2005, the support groups from Taiwan decided to bring the case to the United Nations and to continue their efforts for redress.

A total of ten lawsuits, including the five cases mentioned above, have been filed with Japanese courts by the victims of Japan’s military comfort women system. The plaintiffs are from South Korea, China, Taiwan, the Philippines, and the Netherlands. In addition, one plaintiff is a Korean resident living in Japan. The Japanese courts denied all the former comfort women’s claims except one: on 27 April 1998, the Shimonoseki branch of Yamaguchi District Court ordered the Japanese government to pay each of the three Korean comfort women 300,000
yen
(about USD$2,272). In this case, the district court found that the Japanese government had a duty to enact legislation to compensate the comfort women and that, by neglecting them for so many years, Japan had exacerbated their pain and committed new harm. Moreover, the court notes: “Upon examination of facts presented in this case, the comfort women system was extremely sexist and racist, disgraced women, trampled on racial pride, and can be seen as a violation of fundamental human rights relating to the core values expressed in Section 13 of the Japanese National Constitution.”
³⁶
This verdict, however, was overturned by the Hiroshima High Court on 26 March 2001. The Japanese courts’ main arguments are: (1) that “any civil or criminal case concerning the Second World War rape centres would now be time-barred by applicable statute of limitations provisions”; (2) that individuals have no right to claim compensation from the state of Japan; and (3) that “any individual claims these victims may
have had for compensation were fully satisfied by peace treaties and international agreements between Japan and other nations following the end of the Second World War.”
³⁷

The Japanese government’s nullification defence arguments have been repeatedly refuted by legal experts both in Japan and in the international legal community. As Special Rapporteur Radhika Coomaraswamy restates: “Statutes of limitations shall not apply in respect to periods during which no effective remedies exist for human rights violations. Claims relating to reparations for gross violations of human rights shall not be subject to a statute of limitations.”
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Furthermore, the Japanese government’s argument that individual comfort women do not have the right to lay a claim against Japan cannot be upheld because, “by the late 1920s international law recognized that when a State injured the nationals of another State, it inflicted injury upon that foreign State and was therefore liable for damages to make whole the injured individuals,” and that individuals are “subjects of rights conferred and duties imposed by international law.”
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As is shown in the cases summarized above, as the redress movement gathered force, even some Japanese courts rejected the arguments of the Japanese government.
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Yet the official stance of the Japanese government is that Japan had settled its war compensation issues with China and other countries through the peace treaties that were signed after the war. For this reason it does not recognize that it has any legal obligations toward former comfort women.

Do the peace treaties it signed after the Second World War justify Japan’s claim that it has adequately addressed its war compensation issues with neighbouring countries? When the Allied Powers worked out the San Francisco Peace Treaty in the fall of 1951, China and Korea were not invited, not only because the Allied Powers could not agree which government was the legitimate representative of these politically divided countries but also because of the political agendas of the treaty’s designers.
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Consequently, when the signatories of the treaty allocated Japanese compensation to the Allied POWs and the occupied countries, China and Korea, which had suffered longer than any other country under the Japanese, were not included. Japan later signed separate treaties with the Nationalist regime in Taiwan in 1952, the Republic of Korea in 1965,
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and the People’s Republic of China in 1972. The Sino-Japanese Peace Treaty that the Japanese government signed with Taiwan in 1952 does not include an article specifying war compensation, but it does state that all issues resulting from the war between the two countries should be resolved according to the San Francisco Peace Treaty. In turn, in Article 14, the San Francisco Peace Treaty specifically details Japan’s compensation to the former Allied Powers, although it also
includes a section waiving all claims not set forth in the treaty. Relying on this waiver section, the Japanese government argues that the Sino-Japanese Joint Communiqué (between Japan and the People’s Republic of China) was signed on the understanding that the Sino-Japanese Peace Treaty of 1952 had already resolved the issue of war compensation and that the right of Chinese victims to claim such compensation had long been abandoned with the signing of that treaty.
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However, concerning this argument, the McDougall report states:

Although China is not a signatory to the 1951 peace treaty, the treaty does discuss China’s rights vis-à-vis Japan following the war. Interestingly, the treaty states in article 21 that China is entitled to benefits under article 14 (a) (2), which sets forth the specific reparations owed by Japan, but does not state specifically that China is subject to the waiver provision in article 14 (b). Because the waiver does not apply to China, there is no basis for the Japanese Government to argue that the treaty bars Chinese nationals from seeking reparations from Japan.
⁴⁴

In refuting the Japanese government’s arguments, Chinese researchers and legal experts made the following points: first of all, the San Francisco Peace Treaty has no binding effect on the People’s Republic of China because it was not a signatory to the treaty. Moreover, the Sino-Japanese Peace Treaty was nullified when China and Japan signed the Joint Communiqué in 1972 because Article 2 of that communiqué states that the Government of Japan recognizes the Government of the People’s Republic of China as the only legitimate government of China. It was under this condition that the diplomatic relationship between the two countries was normalized. Using the Sino-Japanese Peace Treaty as its defence, therefore, contradicts Japan’s position as defined in the Sino-Japanese Joint Communiqué.
⁴⁵

Moreover, McDougall’s final report states that, even though the San Francisco Peace Treaty contains a waiver section, “the Japanese government’s attempt to escape liability through the operation of these treaties fails on two counts: (a) Japan’s direct involvement in the establishment of the rape camps was concealed when the treaties were written, a crucial fact that must now prohibit on equity grounds any attempt by Japan to rely on these treaties to avoid liability; and (b) the plain language of the treaties indicate that they were not intended to foreclose claims for compensation by individuals for harm committed by the Japanese military in violation of human rights or humanitarian law.”
⁴⁶
In fact, in certain instances, the Government of Japan
argues that the San Francisco Peace Treaty does not altogether negate the individual’s right to claim compensation. For example, Kang Jian notes that, during the lawsuits involving Japanese nationals detained in Siberia and Japanese atomic bomb victims, the Japanese government stated that, with regard to seeking compensation from another nation, its position had always been that what was abandoned by the San Francisco Peace Treaty was not the individual right to claim but, rather, the government’s right to claim on behalf of the individual.
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Interestingly, however, when it comes to claims put forward by victims of war crimes committed by the Japanese military, the Japanese government offers a totally different interpretation of the treaty.
⁴⁸

While, since the rise of the redress movement, the Japanese government has been referring to the San Francisco Peace Treaty as evidence that compensation issues have already been settled, John Price’s research reveals that, in 1951, the Japanese government recognized that the treaty could not extinguish the right of victims to claim compensation. According to diplomatic records that were declassified in 2000, the Dutch government refused to accept the proposal that the treaty would extinguish the rights of its citizens to seek redress, and it threatened to boycott the proceedings. In his letter to the Dutch government, Japan’s prime minister Yoshida Shigeru stated that the peace treaty did “not involve the expropriation by each Allied government of the private claims of its nationals.”
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Price calls for concerned governments to work toward reconciliation by fully investigating the war claims of survivors and creating a supplementary pact that will allow justice to finally triumph.
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Although the Japanese courts denied the victims’ claims for compensation, the litigation brought forward by the comfort women forced them to recognize Japan’s wartime atrocities against women and to admit that the victims are still suffering. Through these lawsuits, the former comfort women’s voices directly confronted and contradicted Japan’s official narrative of the war, providing a powerful educational platform within the Japanese nation-state, where the dominant ideology had constructed an image of Japan as the liberator of Asia (which had hitherto been oppressed by Western colonialism) and as the real victim of the Second World War. Indeed, the comfort women’s redress movement has had a significant impact on the “public memory” of the war both in Japan and in the rest of the world.
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Together with the war victims of other countries, the former Chinese comfort women also presented their cases to jurisdictions outside Japan and at international tribunals. On 18 September 2000, fifteen former comfort women from Korea, China, the Philippines, and Taiwan filed a class action
lawsuit with the US District of Columbia Circuit Court in Washington, demanding a formal apology and compensation from the Japanese government. This was the first time the issue was addressed in the US courts.
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Chinese survivors Zhu Qiaomei, Lu Xiuzhen, Guo Yaying, and Yuan Zhulin were among the plaintiffs, and Chen Lifei of the Research Center for Chinese “Comfort Women” acted as their representative. The comfort women’s lawsuit received strong support from members of the US Congress and numerous lawyers, but the court sided with the Government of Japan, arguing that Japan was not subject to the jurisdiction of the US court.
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On 4 October 2001, the court dismissed the comfort women’s class action lawsuit.