“Comfort Women”, the “Birangona” and Historical War Time Sexual Violence: Ignoring Wounds of The Past?

Earlier this month, I attended the opening ceremony of an exhibit on “Women and War” at a museum in the Philippines. A survivor of war time atrocities, Lola Estelita, spoke about her experiences, moving many in the audience to tears. Many other survivors of wartime sexual slavery and atrocities – called the “Lolas” or grandmothers – are now no longer with us. In South Korea, the loss of Kim Bok-dong who campaigned relentlessly for recognition of the South Korean Comfort Women is being mourned. Another group of survivors that have received scant international recognition are the “Birangona” or war heroines – thus termed by the Bangladesh government to refer to survivors of the mass rapes committed during the 1971 war and in an effort to remove the associated stigma – that resulted in the formation of Bangladesh.

All these survivors have struggled to gain recognition, with advocacy campaigns gaining ground only in the past two decades for the Comfort Women – and even more recently for the Birangona. Part of the reason has been the stigma and silence around the issue, resulting in the understandable reluctance of survivors to come forward – with the first South Korean, Kim Hak-sun, coming forward only decades later in 1991.

The recent award of the Nobel peace prize to Nadia Murad and Dr. Denis Mukwege has shone a spotlight on the issue of sexual and gender-based violence in times of conflict – and this is the time to recognize and redress the atrocities that continue to occur, and that have occurred in the past.

With the passage of time and with survivors ailing and ageing, there is an extra urgency to the question of redress for historical atrocities of war time sexual violence. What are the legal options for atrocities that have taken place decades ago? Even at the best of times, prosecution and redress is difficult enough, so are prosecutions still possible? What is the status of an official apology, along with reparations?

The status of prosecutions for war time rape is virtually non-existent, domestically and internationally. At the International Military Tribunal for the Far East (IMTFE) these crimes were completely ignored. In fact, prosecutions of such crimes under international law and at international tribunals is relatively recent – with the international criminal tribunals for the Former Yugoslavia and Rwanda the first international courts to recognize and convict individuals for sexual violence, as war crimes and crimes against humanity. (There are however problems with the definitions of these crimes, that have been carried over substantially into the Rome Statute. For concerns that the disregard for gender is being replicated in a draft treaty on crimes against humanity, see the recent Opinio Jurispost here.) However, there have been other setbacks. In the recent Bemba case, the Appeal Chamber of the ICC overturned a conviction for sexual violence. The petition of 400 Rohingya women – Shanti Mohila – to the ICC asking for justice highlights the prevalence of these crimes.

Unsuccessful efforts have been made to bring domestic prosecutions, in Japan, the U.S as well as in the Philippines in regard to the Comfort Women. In the case of the Birangona, there has been little recognition of the mass rapes – partly as the subject was taboo – and there have been no prosecutions, either in Bangladesh or Pakistan. It must be noted that a general amnesty was also granted immediately after the war for local collaborators. It is only in recent years that the issue is now being raised, but again, there is tremendous reticence around dealing with this. In the recent war crimes trials that have commenced in Bangladesh, the definition of sexual offences was excluded from the foundational statute. (For a consideration of rape as ‘system crimes’, see here)

Given the poor record on prosecutions, the question of apologies and reparations also becomes important, as a measure of acknowledgement as well as recognition of the scale of the atrocities committed.

There has been different treatment by Japan of the issue in various countries. In South Korea, a deal was signed in 2015 that constituted a limited acknowledgment and provided for payment into a privately run trust fund. However, with considerable public backlash and change in government, this deal has come close to unravelling. In 2018, reiterating that the agreement would stand, the President of South Korea however called for a public and “heartfelt apology”, which shows no signs of materializing. There have been no such agreements or compensation in the Philippines, Taiwan or China, a few of the other countries that have survivors. In the case of Bangladesh, there has been no indication of either apology or reparations.

At this point, the Japanese government is obfuscating matters further – and perhaps in keeping with the “Streisand effect”, helping focus more attention to the issue with adamant insistence on the removal of Comfort Women statues in other countries – in South Korea, the Philippines, and in the U.S. These (mainly successful) attempts at historical revisionism and denial of the role of Japan are also partly the result of the successful weaponization of foreign policy, mainly linked to aid and financial assistance. (I use this with much irony, given the usual favoured phrase is the ‘weaponization of human rights”!)

The clock is ticking, and it is time to redouble efforts onto the issue of redress for wartime sexual violence and associated atrocities. This needs to be viewed from a lens other than that of foreign policy – rather, human rights considerations and the need to redress atrocities of the past, that continue to haunt not just the survivors, but all of us.