2004.8.6
August 6 2004
Thank you, Mme/Mr. Chairperson, for giving me the opportunity to speak here today. I am Yasushi HIGASHIZAWA representing the Japan Civil Liberties Union (JCLU). I would like to refer to the Sub-Commission's resolution last year on "Systematic rape, sexual slavery and slavery-like practice (2003/26). That resolution reiterates that States should provide compensation for unremedied violation as well as effective criminal penalties in order to end the cycle of impunity on sexual violence during armed conflicts.
As a practicing attorney, I have been involved in the work to bring about judicial remedy to the survivors of military sexual slavery. I am a member of the counsel representing forty-six women from the Philippines or "lolas" as the old women are called there with respect. They were victimized in sexual slavery at the hands of the Japanese Army during the Second World War and they filed the lawsuits in Japan against the Japanese Government in 1993, seeking for judicial remedy and justice.
Today I must report to distinguished members of the Sub-Commission very disappointing results in Japan.On 25 Dec 2003, while these lolas were attending the Christmas mass, the Supreme Court of Japan rejected to review the claims these women had made against the Japanese Government. That was a terrible Christmas present to the lolas who have believed of Justice to be rendered eventually and fifteen of who already passed away. The Supreme Court left those victimized people by the former Japanese military totally unremedied. The ground for the ruling was stated only:
Appeals are in effect simply concerning violations of legal provisions rather than the Constitution itself, or lacking the premises necessary to argue for violations of the Constitution. As such, these grounds for appeal made by the plaintiffs clearly do not meet the said requirements provided in the Civil Procedure Code.
So short, with no substantial judgments made concerning the content of claims of the lolas, was the conclusion of ththe Supreme Court of Japan in this lawsuit that had taken more than ten years.
Now, such a dismissal of appeal by the Supreme Court has not been given solely to these Filipino women. In March 2003, in two lawsuits filed by Korean survivors of sexual slavery, the Supreme Court ruled to reject the appeals of the survivors, and these rulings were identical to the ruling in the Filipino women’s case. It was then repeated in March 2004 in the case of a Dutch survivor of sexual slavery. The Supreme Court of Japan has completely stayed away from making any material judgments, despite the fact that there were so many legal issues contested based on the domestic law of Japan and on international law.
I’ll give you a few examples of these contested legal issues. The victims of sexual slavery have claimed apology and legal compensation to be provided for the wrongful acts the State of Japan had committed. The lower courts of Japan, however, rejected these claims on the following grounds: 1) that the principle of state immunity was applied under the case law of Japan at the time of the Second World War; and 2) the statute of limitations for making tort claims is twenty years and had already passed in these cases. However, these decisions of Japanese courts on such technical grounds have kept some of the more serious and substantial questions unanswered. Should such a principle as the one of state immunity still be applied under the present Constitution of Japan, which is so undemocratic, and so much against human rights principles? Is it consistent with the principles of international law, in particular those of remedies to grave human rights violations, to allow a statute of limitations to time-bar the remedy for the damage of sexual slavery, which is regarded as a crime against humanity? Does such a response on the part of the court of Japan discharge the obligations of the State of Japan under international law?
Nonetheless, the Supreme Court of Japan took away any possibility of judicially obtaining remedy from the victims of sexual slavery, providing no substantial reason to do so. Such a judgment on the part of the Supreme Court is clearly against the obligations of the State of Japan under international law, and they were caused mainly by the arguments by the Japanese Government.
The Japanese Government has accepted as a historical fact its past involvement in sexual slavery. But at the same time, it has been making a variety of technical legal arguments to stay away from taking any legal responsibility for it. All the legal arguments that the Japanese Courts has taken up to dismiss the claims such as state immunity or statutory limitations, in fact, all of them are the arguments made by the accused Government in these lawsuits. As for the necessity for providing the victims of sexual slavery with domestic remedy, and for the kinds of obligations Japan has under international law, they have been re-affirmed in the Special Rapporteur's report to this Sub-Commission submitted by Ms Gay J. McDougall, and in the reports of Special Rapporteur Ms Radhika Coomaraswamy to the Human Rights Commission. The government of Japan, however, has been in the way for these international obligations to be put into practice through a judicial process.
In sum, the damage of sexual slavery inflicted by Japan has not been remedied in Japan's domestic judicial process, with no substantial examination carried out. I would like to urge distinguished members of the Sub-Commission to reiterate a legal principle that states may not invoke its internal law or technical barriers as justification for its failure to perform obligations under international law.
Thank you very much for your attention.
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