The scope of international law is vast, reaching from laws of fair war to human rights. As often as people connect international law to specifically that of protection and promotion of human rights, one of the world's most important topics remains downplayed - gender violence. More recently, violence against women has come into the spotlight as a major human rights concern, but violence has occurred in many forms such as, social subjugation to relentless factory labor, unfair wages, and even exotification. There is yet another category to add to this, which is systematic sexual slavery.

Sexual slavery may be the most odious crime to ever exist in our time, yet it remains unknown to many people around the world. This is because certain states that have committed such a crime have done a remarkable job of concealing it. So even though some people may have a clue as to what sexual slavery entails, the excruciating details of such a vile act go far beyond the imagination of most human beings.

In 1992, the discussion on gendered violence became a topic of international discussion when five Korean women stood up and demanded compensation from Japan for being forced into military-instituted rape stations during World War II. Their courage motivated more women to speak out, bringing international spotlight on their story. Despite Korea's efforts, Japan refused to acknowledge that their Imperial Forces were at fault. Until the 1990s, Japan was never pressured to acknowledge that the act occurred. Unfortunately, the Korean government does not help the situation because the comfort stations are something that they also do not want to remember. To Korea, the "comfort women" made the state look weaker, something it strived to avoid during World War II.

This is an obvious dilemma. If no government will acknowledge that the crime occurred, will the "comfort women" ever receive what they want? Money is not the focus here, but rather the demand for Japan to say, "Yes, this happened. We are sorry." For now, the question remains. But even while the world awaits the Japanese government's response, it does not go unacknowledged that the story of the comfort women forced the United Nations and the global community to see gender violence as a topic of international law, and that is what this paper will address: to what scope has violence against women been incorporated into international law and, given the outcome, was the institutionalization of comfort stations a violation of international law? If so, should Japan be obligated to grant compensation and apologize to the comfort women? By the end of this paper, we will see that the answer is, in fact, yes.

Japan claims that they have no obligation to the comfort women of Korea and citizens of formerly occupied states because of the Japan-Korea Agreement of 1965. However, Japan has a strong and pending obligation to provide compensation to the comfort women because its government committed several international crimes by implementing the "comfort" system that qualifies as persecution under the law.

The paper will begin with an introduction into the history of comfort women, and how the system of inescapable rape began. It is most important to understand rape in a social context, as well as in a legal context. The history will touch on the social understanding of what rape means. Then, Japan's arguments of defense will be presented as to why it believes its debt has already been paid. Following this, the paper will present an abundance of arguments against Japan, proving that the government of Japan should be obligated to pay compensation to the comfort women.

A brief summary of the comfort women is necessary to understand the severity of the issue at hand. During World War II, Japan extended its imperial army to many different countries of South East Asia, including Malaysia, the Philippines, Taiwan, Singapore, China, and of course Korea. As is expected with the practice of war, there was an outbreak of crime. During this time, brutal killings took place, along with poverty, looting, the destruction of entire cities as was the case of the city of Nanking (later to be known as "the Rape of Nanking"), and also rape.

Anne Llewellyn Barstow divides rape into three different categories: individual rape, mass rape, and military sexual slavery. Individual rape, in which the "purpose is almost always to assert power over another," and mass rape, in which "sexual attacks on an enemy's women [are used] as a strategy of war," did occur, but what we are concerned with is the last form of rape - military sexual slavery.1 This last kind of rape is when women and girls are forcibly taken out of their homes, away from their family and community and transported to a military campsite, where their bodies become objects of sexual pleasure for needy and aggressive soldiers. This is different from prostitution, for prostitution, however desperate and unfair of a choice, is a choice nonetheless. But because the comfort stations of World War II, on the other hand, were government-instituted, the women brought there had no say in the matter, and they could not escape.

Recollection of becoming a comfort woman is chilling. Madam X, a former comfort woman from China, remembers the brutal memory of being taken away from home. She writes

They burst in and grabbed me… Then my panties were ripped off and one of the soldiers undid the front of his trousers. While the others held me down, he stuck his thing into me. I had no idea what he was trying to do. I knew nothing about the facts of life. I was only fifteen and hadn't even had my first period. It was agonizing… They did it on the kitchen floor, right in front of my parents and brother…a month later, they took me to the Tai Sun Hotel opposite the Pudu Jail in Jalan Pudu… I was forced to have sex with ten to twenty men a day… It was unbearable - but I had to bear it.2

Stories like that of Madam X are not uncommon. As a matter of fact, it was actually standard that women were confiscated in this manner. It is estimated that up to 200,000 women and girls worked in comfort stations between 1932 up until Japan was formally defeated in1945. Of these two hundred thousand women, 80% were from Korea.

Comfort stations were not solely the result of soldiers wanting to release their sexual frustration. Three factors were imperative in the decision. Firstly, Japan instituted comfort stations to prevent the soldiers from raping women within areas that their Imperial Forces were occupying. Because of the animosity that would arise from the community if women were raped, comfort stations were a means of keeping the peace in occupied areas. Secondly, they wanted to contain venereal disease in order to avoid an epidemic. In many military campsites, comfort women would not be allowed to go to a hospital, but rather remain in their corridors and did not service any men for one week if they contracted venereal disease. And lastly, Japan wanted to eliminate the chance of any confidential information and military strategy being carelessly spoken from a Japanese soldier to a local woman.3 Given these three concerns, the government proceeded to systematically implement comfort stations and collect women for the satisfaction of their soldiers and the secrecy of their military strategies.

However brutal this history is, there remains three main reasons why Japan claims they do not owe compensation to Korea today. These reasons include pride, the Japan-Korea Agreement of 1965, and the argument against compensation for crimes against humanity. The first, and more subjective, reason is pride. In the article, "Your Comfort versus My Death," Chung Hyun-Kyung states that Japanese men "preferred to deny the whole thing because they did not want uncomfortable guilty feelings"4 In accordance with this stance, Japan believed it was to the benefit of its citizens that the dark history be concealed, leaving the story of the comfort women unspoken in their history books. Writing the whole truth about World War II, and not only the segment when Japan was victimized, would not only make Japan look bad, but would require Japan to admit that they committed a crime.

Secondly, Japan argues that they have already paid all reparations to Korea in the 1965 Japan-Korea Agreement and, therefore, have no further obligation to the country or the dehumanized women. Japan depends on Article Two of the Agreement to defend itself; that article states all "claims between the two countries are completely settled."5 Because of this clause, the government of Japan is able to recognize any claims post-agreement outside of their responsibility. Thus, calling upon the 1965 Japan-Korea Agreement as a defense, Japan rejects any further claims made by Korea and thus, also rejects claims made by the former comfort women.

When Korean comfort women made claims against Japan, one of their main arguments was that institutionalized rape is a crime against humanity. To counter this argument, Japan claims that there is no precedent that proves the institution of comfort stations was a crime against humanity, and furthermore defends their stance with the Nuremberg International Military Tribunal Charter. Those bringing suit against the Japanese government used the Nuremburg Charter, arguing that being forced to provide "comfort" to the Japanese Imperial Army was a crime against humanity. They used Article 6-c to claim that it was a "Crime Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war." However, Japan fights back, saying that the Nuremburg Charter does not explicitly "provide a solid legal grounding" for comfort women to receive compensation.6

Of the three arguments - pride, the 1965 Japan-Korea Agreement, and the Nuremberg International Military Tribunal Charter - Japan's strongest argument must be the second, simply because it refers to a signed document that Korea and Japan both agreed to. Given that one defense, the government of Japan has been able to dismiss claims from Korea for several years. Offhandedly, it may seem as though the only way it could be proven Japan should pay compensation to the comfort women would be if Article Two of the Agreement were altered to allow for further claims to be brought to court.

Nevertheless, the Japanese government has committed far too many crimes for even this document to defend it. The brutal rape of hundreds of thousands of women by the Japanese army is not something that can forever be overlooked by international law. The inclusion of gender violence in international law works to prove the overwhelming guilt of the Japanese government. This paper will show how gender violence has been established in the law and specifically, an understanding of systematic sexual slavery, crimes against humanity, war crimes, genocide, and rape as a jus cogens crime.

The final report on "Systematic rape, sexual slavery and slavery-like practices during armed conflict" commissioned by The Sub-Commission on Prevention of Discrimination and Protection of Minorities defines rape as "any violence, physical or psychological, carried out through sexual means or by targeting sexuality." This definition is, of course, within the broader scope of what sexual violence is and leaves out the vivid details of what rape entails. Why is this? The United Nations and international law, as well as humanitarian law, has failed in this matter, for there is no precise definition of rape. The Hague Convention Number Four of 1907 qualifies rape within the context of "honor." Raping a woman is considered stripping away family honor rather than stripping away one's humanity.7 This is unfortunate because the focus is not on the inherent and overt violence of the act of rape, but rather on the disgrace forced upon the victim and the family of the victim. Sexual slavery is, in short, "forced prostitution."8 Forced prostitution is to be understood as a dominant person forcing another to engage in sexual activity. Connected to this is the systematic sexual slavery. It is the "comfort" system, which is a planned method of achieving these ends. The Japanese government should take credit for the instigation and prolonging of such a system since forced prostitution is what took place day in and day out at the comfort stations.

Jus cogens laws, as defined by the Vienna Convention on the Law of Treaties, are laws understood as norms and are "accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted…"9 Infringements of jus cogens laws include "slavery, crimes against humanity, genocide, certain war crimes, and torture."10 Which of these violations apply to the comfort women? Japan is guilty of committing all of these crimes.

First and foremost, the comfort stations are a blatant form of slavery. The "comforting" of soldiers is not an occurrence that began during World War II. On the contrary, prostitutes have been historically known to be near military campsites whenever there was a war of some sort.11 The difference though is that it was the Japanese government that organized the process of collecting the women. Similar to slavery in the United States, the comfort women who refused sex or tried to escape were beaten severely; many women died from their wounds, and many more have scars on their bodies as a constant reminder of the violence. The story of the comfort women is undoubtedly a story of slavery, and more specifically, systematic sexual slavery.

According to the sub-commission report, even one act of "serious sexual violence, including rape" may be found as a crime against humanity if it can be proven that such an act is connected to a "systematic attack on a civil population."12 Japan is guilty of not one, but many of these acts. Besides women's bodies serving as an outlet for sex obsession of the Japanese soldiers, there was yet another reason for the implementation of comfort stations. It was believed that nothing heightened war revenge more than taking the women of the enemy. This act resulted in extreme resentment, as this was a personal offence to the women's country. Therefore, the forced transformation of innocent women and girls of the enemy side to comfort women must be considered a brutal crime against humanity.

Furthermore, according to Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, systematic sexual slavery may also be considered a form of genocide. "The key element of the crime of genocide is the specific intent on the part of the perpetrator to physically destroy... a protected group, namely a national, ethnic, racial, or religious group."13 Yet another problem arises in international law regarding gender: gender is not listed as a group that can be targeted to eliminate. Violence against women during World War II must be considered genocide because of Japan's attempt to destroy a community through violence against the women belonging to that community. In this way, Japan is also guilty of genocide.

Fourthly, the implementation of the comfort system was also a war crime. The Fourth Geneva Convention, states that "women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault."14 The actions of Japan's Imperial Army are an indisputable breach of this statement. Because violations of jus cogens laws are subject for prosecution in any country, the Netherlands was able to file suit against soldiers of the Japanese military that kept thirty-five Dutch women in comfort stations. These soldiers were found guilty of, among other things, these war crimes.15 Thus, there is no argument against the fact that rape, although not explicitly defined in the Geneva Conventions as a war crime, is a war crime, and the case has already been proven. For, just as one must infer from the 1907 Hague Convention that the importance of one's "family honour" is a way of forbidding rape without defining the term, one must also recognize from the Geneva Conventions that rape is a war crime. Thus, the systematic rape that took place under the discretion of the Japanese government during the war was, in fact, a war crime.

In 1993, the appointed judge at the United Nations Conference on Human Rights, Honorable Ed Broadbent from Canada, said this of violence against women during wartime:

As one of those who spoke said 'those making the war are not women, those doing the rapes are not women, however those being raped, yes, we are women…' These unspeakable acts…are the results of not years but centuries, not of one culture, but of almost all cultures around the world, of patriarchy…There are acts we've heard about in times of war… are breaches of the Fourth Geneva Convention. That is a formal way of saying that rape, forced prostitution, and forced pregnancy are forms of torture. We must understand legally and morally that they are forms of torture, and we must respond that way.16

Judge Broadbert's statement is a fair response to Madam X and the many other comfort women who for years, have failed to be acknowledged to the world. And to reiterate his words, such extreme violence against women is torture and should be acknowledged and responded to as such. As has been demonstrated, Japan's argument is not a strong enough defense against international law. The government of Japan during World War II ordered atrocious acts to be committed to hundreds of thousands of women, not only ruining those women's lives, but also destroying families and communities in the process.

In summary, Japan's three reasons for not paying compensation to the comfort women is: pride, the Japan-Korea Agreement of 1965, Japan's refusal to acknowledge mass rape as a crime against humanity. In the Japan-Korea Agreement, all claims were agreed to have been settled, therefore releasing Japan of any further obligation to Korea, and also, the comfort women's claim is not valid enough for compensation. But as was shown, there are in fact numerous reasons which obligate Japan to pay compensation to Korea. Japan's actions qualify as serious international crimes: slavery, crimes against humanity, genocide, war crimes, and torture. All the money in the world could not possibly repair the damage that has been done. But winning a suit against Japan would not be about the money, but rather the necessity for Japan to confess their faults and apologize.

Perhaps we are getting closer to hearing that apology, but even if international law is making strides to incorporate gendered violence into its documents, it is nevertheless acting at too slow of a pace. What will happen when the remaining comfort women pass away, as many already have? Once that has happened, Japan will have no obligation to pay compensation because there will be no one to pay compensation to. Korea must take a stand against Japan on behalf of its own citizens and rise to the occasion to recognize that military-instituted rape is an international violence against women and against humanity and must therefore be prosecuted in an international arena. On a smaller scale, Netherlands was able to sue individual soldiers and prove that rape was a war crime. The next step for comfort women is to sue the government of Japan and win what they have for many years deserved.

1. David Boling, "Mass Rape, enforced prostitution, and the Japanese Imperial Army: Japan eschews international legal responsibility?" The Columbia Journal of Transnational Law 2 (1995): 11.

2. George Hicks, The Comfort Women (Japan: Yenbooks, 1995), xii.

3. Boling, 8.

4. Anne Llewellyn Bastow ed., War's Dirty Secret: Rape, prostitution, and other crimes against women (Cleveland, Ohio: The Pilgrim Press, 2000), 17.

5. Chang Se-moon, "[Korea-Japan Summit] Comfort Women and Forced Labor" The Korea Times, 6 June 2003.

6. Boling, 23.

7. Gay McDougall, “Systematic rape, sexual slavery, and slavery-like practices dur-ing armed conflict,” United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities. Document symbol: E/CN.4/Sub.2/1998/13. (22 June 1998), 60.

8. McDougall, 31.

9. International Law Commission, "Vienna Convention on the Law of Treaties," article 53. <http://www.un.org/law/ilc/texts/treaties.htm>.

10. McDougall, 37.

11. Ibid, 43.

12. Ibid, 48.

13. Ibid, 59.

14. Ibid, 62.

15. Hicks, 3.

16. Barstow, 236.

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