The Time is Urgent While the Discrimination Continues: CEDAW As the Last Avenue of Justice for the Malaya Lolas?

[Alexandra Lily Kather, is a Legal Advisor, International Crimes and Accountability Program, European Center for Constitutional and Human Rights (ECCHR). Silvia Rojas Castro is a ECCHR Critical Legal Trainee, International Crimes and Accountability Program, and Vandita Khanna is ECCHR Critical Legal Training Alumn*, International Crimes and Accountability Program.]

75 years after the Malaya Lolas (“Free Grandmothers”) were sexually enslaved by the Imperial Japanese Army, they are turning to the United Nations Committee for the Elimination for All Forms of Discrimination Against Women (“CEDAW Committee”) as a result of the Philippines’ failure to fulfil their obligations under the United Nations Convention for the Elimination for All Forms of Discrimination Against Women (“CEDAW Convention”). At least one thousand Filipina women and girls were held as sexual slavery hostages (Tanaka, 2002, p.47) in an institutionalized system of female sexual slavery established by the Imperial Japanese Army around the time of Second World War (WWII). The Malaya Lolas are one group of self-organized Filipina survivors, out of several in the Philippines still striving for justice.

On 23 November 1944, the Imperial Japanese Army raided the district of Mapanique in the municipality of Candaba in the province of Pampanga, the Philippines. Upon the invasion, most men and boys were executed or enslaved for forced labour, while women and girls, among them the Malaya Lolas, were forced to carry the belongings of civilians looted by Japanese soldiers and march towards the “Bahay na Pula” (Red House), the Japanese headquarters in San Ildefonso, Pampanga. Upon arrival, the women and girls were sexually enslaved, repeatedly subjected to severe forms of sexualized violence, including rape. Crimes that, although contrary to international law at the time, particularly the 1926 Slavery Convention, were not even indicted at the International Military Tribunals for the Far East (“Tokyo Tribunals”). The Red House constitutes merely one of thirty such facilities in the Philippines.

After decades of silence and disregard from authorities, the Malaya Lolas are still awaiting justice for the crimes committed against them. Today, after the exhaustion of all domestic remedies and therefore as a last resort, the remaining 28 survivors of the organization – out of originally over 90 in the 1990s and over 70 in 2004 when the group commenced its domestic litigation efforts – have, together with the Center for International Law (CenterLaw) and the European Center for Constitutional and Human Rights (ECCHR), submitted a communication to the CEDAW Committee. Therein, they’re arguing that the failure of their own State to provide an effective remedy or to support their claims for recognition and reparations falls short of the Philippines’ obligations under the CEDAW Convention.

The Philippines’ current stance of denial

While it was the Imperial Japanese Army that committed the crime of sexual enslavement during WWII, the Communication argues that the Philippines’ response, or lack thereof, has been contrary to its obligations under the CEDAW Convention since 2003 – the year in which the Philippines ratified the CEDAW Optional Protocol. But before pointing to specific violations. under the Convention, it is necessary to locate the Philippines’ response to the Malaya Lolas’ demands within a historical context of gender-based discrimination, exemplified in the de-prioritization of the female wartime slavery survivors’ claims. This first became apparent during the negotiations and drafting of the 1951 San Francisco Peace Treaty and the 1956 Reparation Agreement, where it became abundantly clear that economic interests of the Philippines not only trumped but invisibilized survivors’ needs. In fact, various government departments of the Philippines continued to deny and trivialize the efforts and reparation claims of the Malaya Lolas since 1998 and, in particular, in the domestic litigation initiated in 2004, wherein the Supreme Court of the Philippines held six years later that the executive had no international obligation to espouse the Malaya Lolas’ claims.

To this date, the Philippines insists that the acknowledgment and reparations claims of the Malaya Lolas are precluded by the 1951 San Francisco Peace Treaty and 1956 Reparations Agreement and that in any case, reparations have been provided by Japan and its privately-funded 1995 Asian Women’s Found (AWF).  These responses have been heavily criticized (see here and here) for being insufficient in that the financial compensation offered by the AWF was not accompanied by an assumption of Japanese legal responsibility for the crimes.   

In contrast to the Philippines’ approach stand the positive developments in South Korea, where the government has not only supported the survivors of the sexual slavery system but also committed itself to a diplomatic resolution to secure effective remedies, including a formal apology, for the survivors. While this approach may have its own shortcomings, the commitment of the South Korean initiative nonetheless paves a step forward in the survivors’ long road to justice at the very least.

As Priya Pillai has outlined previously, wartime sexual violence and slavery cannot be relegated to the sphere of foreign policy; instead, it ought to be understood and accounted for as crimes contrary to international law, including its physical, psychological, social and economic consequences for the survivors and those around them. Within this context, a domestic initiative by the Philippines to acknowledge past atrocities, recognize ongoing suffering, and provide mechanisms to seek reparations holds potential to heal past wounds of the Malaya Lolas – mostly rural women of an advanced age – and spark social and political discourse on how governments should effectively respond to gender-based violence against women, regardless of when, or by whom, it was perpetrated.

The CEDAW Committee as a recourse for justice

While at first glance Japan’s institutionalized system of sexual slavery appears to be very far away in time, the fact that the Malaya Lolas continue in their struggle for adequate recognition and reparations shows that their claims remain pressing even today. In that sense, the CEDAW Committee constitutes the last avenue for the Malaya Lolas to hold their government to account for its failure to provide rights guaranteed under the CEDAW Convention.

More specifically, the communication argues that the Philippines is breaching its obligations derived from articles 1, 2(b), 2(c) and 6 of the CEDAW Convention. Whereas Article 1 defines gender-based violence, CEDAW General Recommendation No. 35 (2017), para. 2 in particular clarifies that “gender-based violence amounts to discrimination within the meaning of Article 1 of the Convention if it impairs or nullifies the enjoyment by women of human rights and fundamental freedoms, such as inter alia (…) the right to equal protection under the law”. Moreover, the refusal of the Philippines to support the reparations-related claims of the Malaya Lolas at executive and judicial levels amounts to an ‘exclusion … made on the basis of sex which has the effect … of impairing’ the enjoyment of human rights by the survivors of the erstwhile sexual slavery system as guaranteed under the Convention.

From this perspective, the Philippines’ current stance perpetuates gender-based discrimination against the Malaya Lolas, a community who themselves and whose offspring continue to live with the subsequent effects of the violence perpetrated against them 75 years ago. Under the CEDAW Convention, all State parties must take all necessary measures to eliminate discrimination against women, regardless of the perpetrators of this discrimination – be it their citizens, organizations, or the State itself. In this particular case, the Philippines State is obligated to provide access to justice, and appropriate and effective remedies under Articles 2(b) and 2(c) of the Convention read with General Recommendation Nos. 28 and 35.  To this date, neither timely access to justice nor appropriate and effective remedies have been provided to the Malaya Lolas, especially since the 2014 Supreme Court decision limited the possibilities of receiving any support or reparations from the Philippines Executive at the domestic level.

Moreover, Article 6 of the Convention enshrines State parties’ obligation to take all appropriate measures against trafficking and exploitation of prostitution of women. General Recommendation No. 30, paras. 79 and 81(g) underline the importance of the provision of effective and timely remedies, namely adequate and comprehensive reparations, for gender-based violations – including sexual enslavement – in conflict settings. The communication submits the Philippines has failed in its obligation under Article 6 of the Convention to facilitate the access to remedies for the survived sexual slavery hostages, by refusing to espouse the claims of the Malaya Lolas, both nationally and before the Japanese Government.

Wider conversations are needed

The Communication to the CEDAW Committee constitutesan appropriate legal intervention to hold the Philippine State accountable. Yet, the struggle of the Malaya Lolas extends beyond legal spaces and has exemplified the need for wider and inter-generational conversations within the society on how to deal with past gender-based violence, including wartime female sexual slavery.

While the Malaya Lolas themselves keep fighting on the streets of Manila for their demands not to be silenced and evaporate, the younger generation in the Philippines is dedicating their work to the struggle of the Malaya Lolas. Among them is Hannah Reyes Morales, who made it her mission to challenge how the Malaya Lolas are portrayed in mass media in the Philippines and now counters ongoing discrimination against the survivors through her photography. Moreover, in response to the government’s removal of a statute, in remembrance of the crimes committed against women by the Imperial Japanese Army, from Roxas Boulevard in Manila in April 2017, a group of students decided to run an exhibition in the capital to stand solidarity with the survivors and continue to shine a light on their demands for justice, recognition and reparations. Another statute was erected in January 2019 and torn down two days after its unveiling.

Will the CEDAW Committee respond in a timely fashion to bolster the Malaya Lolas’ claims for justice in the Philippines? The Malaya Lolas cannot afford to wait another 75 years for an answer to this question.