The Silence Around Wartime Sexual Violence: A Feminist Analysis of the Japanese War Crimes Against Women During World War II Introduction The Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery (Tokyo Women’s Tribunal), which was held between December 8th to 12th, 2000, arose out of the international community’s incompetence and unwillingness to hold Japan responsible for its large-scale sexual violence during World War II (WWII) under international law (Charter of the Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery, 2001). While sexual violence is commonly seen as a by-product of war and military conflicts, the Japanese empire was particularly notorious for engaging in mass rapes and institutionalized sexual slavery. The discourse around the Japanese wartime sexual violence mainly revolves around two equally nefarious and separate events: the 1937 Nanjing Massacre and the sexual slavery system euphemistically known as ‘comfort women’, which roughly lasted from 1932 until 1945. The victims of said incidents were primarily women, who were subject to extreme forms of brutality, as well as enduring physical and mental damage long after the end of the war. Although a people’s tribunal with no legal power to enforce its judgment, the Tokyo Women’s Tribunal was the first large-scale international effort to revisit the issue of comfort women, provide an international legal framework around said matter, and even hold some perpetrators that were previously granted impunity, such as emperor Hirohito responsible (Judgment of The Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery, 2001). On the contrary, the 1946 International Military Tribunal for the Far East (IMTFE, Tokyo Tribunal), despite having legal jurisdiction and means to prosecute the perpetrators, failed to accomplish any of those things. It was after around five decades in the 1990s that international civil society began shedding light on the Japanese empire’s systematic large-scale sexual violence during WWII. This raises the question: why did international law make little to no effort to hold individual perpetrators and the Japanese state responsible for its conduct of systematic sexual violence during WWII and how does feminist international relations theory explain it? Using a feminist analysis of the post-WWII international legal order surrounding Japan’s crimes against women, this essay has found that international law’s disproportionate focus on issues of high politics marginalized the female victims and the issue of large-scale sexual violence. This essay revisits the legal actions taken by the international community to hold Japan accountable for the atrocities committed during the Nanjing Massacre and against the comfort women. In doing so, it focuses on their exclusion of Japan’s large-scale sexual violence against women. Beginning with a literature review on the wider issue of wartime sexual violence and an introduction to the core tenets of feminist international relations theory, the essay then turns to an in-depth analysis of the 1946 Tokyo Tribunal in relation to the prosecution of individual perpetrators of the 1937 Nanjing Massacre. This is followed by an examination of the 1951 San Francisco Peace Treaty, as well as the 1965 Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Co-operation between Japan and the Republic of Korea in relation to the issue of the comfort of women and Japan’s accountability as a subject of international humanitarian law. This essay focuses on these three legal instruments while acknowledging that the Tokyo Tribunal was followed by several other war crime trials, the issue of comfort women encompasses several Asian countries, and the recent developments surrounding said issue. Wartime Sexual Violence There is an overwhelming yet unfortunate consensus that various acts of sexual violence are inevitable during war and military conflict. Wartime sexual violence encompasses a wide range of atrocious acts such as “rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilization, forced marriage and any other form of sexual violence of comparable gravity perpetrated against women, men, girls or boys that is directly or indirectly linked to a conflict” (United Nations Peacekeeping). Scholars differentiate between the orchestration of large-scale, systematic, and instrumental sexual violence and individual, opportunistic yet numerous occurrences of assaults enabled by lack of supervision and order during conflict (Féron, 2018; Ward, 2018). Féron (2018) notes that the international community is increasingly leaning towards understanding wartime sexual violence as an instrument of war. However, Ward (2018) stresses that not all instances of conflict-related sexual violence have a political motive, as demonstrated by the prevalence of sexual violence committed by the UN peacekeeping forces. In this regard, emphasis on conflict-related sexual violence as a systematic issue should be balanced with a perception of discrete, opportunistic instances as a ‘crime against the individual’ and violation of the individual’s physical integrity and dignity (Ward, 2018). The interdisciplinary scholarship surrounding wartime sexual violence has largely been concerned with the root causes of such heinous crimes. The feminist approach to understanding conflict-related sexual violence has stressed the theory of hegemonic masculinity, according to which sexual violence is seen as a means of fortifying the power men have over women. This view explains gang rape, for example, as a form of communication and bonding opportunity for men (Alison, 2007). Scholars who highlight male (Féron, 2018) and third-gender victims (Ward, 2018) object to the traditional hierarchical conceptualization of women as the sole victims. Alternatively, wartime sexual violence has been explained as a weapon of war instrumentally organized by a state. An apparent example is considered to be genocidal rape, one which Bergoffen (2011) explains is performed publicly like a ‘spectacle’ to destroy and/or create new social order, inflict fear and horror, dehumanize the target population, as well as further genocidal objectives. Further, Ward (2018) proposes the creation of the Convention against Rape and Other Forms of Sexual Violence, with a sole focus on issues of sexual violence and an agenda to clarify the legal ambiguity surrounding said issues. Feminist theories of International Relations In the words of Ann Tickner (1992), feminists strive to “introduce gender as a category of analysis into the discipline of international relations” (p.3). Some scholars (Wibben, 2004) note that feminism is an approach or lens, through which international relations (IR) is studied. Fundamentally, the feminist theory strives to shed light on the gender-blindness of IR and global politics towards the hierarchical power relations between men and women and/or masculinity and femininity. Gender-blindness manifests itself as a disproportionate focus on issues considered ‘high politics’, such as war, sovereignty, anarchy, security, power, and consequently, ignorance of the issues women face in their everyday lives. For example, whereas traditional IR theories like realism portray war as a necessary means of preserving the security of the state, they disregard, say, the sexual violence said war inflicts on women. In this sense, as Enloe (2014) asserts, women should be seen as actors of international law. Most states display a surface-level commitment to women’s rights (Bunch, 1990). Moreover, issues of ‘high politics’ are often excessively associated with men and reserved for their discretion. This was institutionalized politically, legally, and culturally by keeping women away from decision-making processes and positions, further relegating them to the private sphere. Scholars like Tickner (1992) have drawn attention to the absence or rather, systematic exclusion of women from policy-making positions domestically, and consequently at the international level. It is worth noting that feminism encompasses a highly diverse set of branches that focus on different gender issues from different perspectives, including critical feminism, liberal feminism, postcolonial feminism, socialist feminism, and so on. All of these are relevant in the context of Imperial Japan’s sexual violence during WWII. Critical feminists, who emphasize the systemic roots of male-female power relations embedded in culture, and social structure, would help make sense of the Confucianism-inspired social stigma against premarital virginity loss that haunted the comfort women long after the war (Qiu et al., 2014). The socialist feminist idea that gender inequality has roots in the economic system provides insights into the common method of ‘recruiting’ women into the so-called comfort stations with false promises of jobs to financially vulnerable women (Tanaka, 2001). According to postcolonial feminism, the majority of the comfort women were Korean because of Korea’s powerlessness as a colony of the Japanese empire (Chang, 2009). This essay will, however, utilize the core notion of general feminist theory which states global politics is largely blind to women’s issues due to its hyperfocus on issues of high politics. Background A look at the historical background of the 1937 Nanjing Massacre and the comfort women system helps establish the gravity of the two events in terms of human rights violations, particularly women’s rights. Chronologically, the 1937 Nanjing Massacre preceded the comfort women system, although scholars note that the latter has origins in the establishment of military brothels in the early 1930s (Tanaka, 2007). Nonetheless, the Nanjing Massacre refers to around six weeks of brutal mass killings of the civilian population of Nanjing by the Japanese Imperial Military. According to the IMTFE, the first month of the massacre saw the rape, mutilation, and torture of around 20000 women. Thus, it is alternatively named the Rape of Nanking. Ironically, preventing another Rape of Nanjing from happening partially influenced the establishment of the comfort women stations (Tanaka, 2001), where from 1937-1945 around 80000-200000 women were forced into sexual slavery for the Japanese military (Chang, 2009). These women were either forcefully deported or tricked into these stations, mainly from territories either occupied or colonized by Imperial Japan, such as Korea, China, and Burma. A study of comfort women survivors (Qiu et al., 2014) reveals that instances of abduction, gang rape, severe physical beating, starvation, being forced to ‘serve’ several men a day, and forced venereal disease examinations were extremely common. They were also constantly guarded, unable to leave or escape. There is now an overwhelming consensus that the Japanese state oversaw the establishment of the comfort women system in order to prevent mass rapes and the spread of venereal diseases among soldiers, as well as to provide “comfort” for them (Henry, 2013; Tanaka, 2001; Chang, 2009). In this sense, it falls into the category of systematically orchestrated sexual violence. Tokyo Tribunal and Individualism The 1946 Tokyo Tribunal was the primary international legal mechanism for the prosecution and punishment of Japanese leaders for the atrocities committed during WWII. Looking at the charter, procedural process, and final judgment of the Tokyo Trial from a feminist perspective, one can discern that it had little to no acknowledgment of the overall sexual violence perpetrated by the Japanese military. In a 1218-page document, the Tokyo Tribunal detailed Imperial Japan’s plan and conduct of war, along with its final judgments. In said report, the Tribunal acknowledged the occurrence of the Rape of Nanjing (Judgment of the International Military Tribunal For The Far East, 1948). However, nowhere in the judgment does it address nor mention the issue of the comfort women, despite its gravity. The feminist claim that prioritizing ‘high politics’ results in the marginalization of women’s experiences and issues (Tickner, 1992) is of importance in understanding the gender-blindness of the Tokyo Tribunal. Gender-blindness is evident in the very charter of the tribunal and the language that shaped it. Article 5 of the International Military Tribunal of the Far East Charter established and classified the types of crimes it assumed jurisdiction over: a) crimes against peace, b) conventional war crimes and c) crimes against humanity. In this sense, crimes against peace defined as “the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing” (Charter of the International Military Tribunal for the Far East, 1946, p.22), were prioritized and given utmost attention. War crimes were defined as “violations of the laws of customs of war”, and crimes against humanity as the “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population” (Charter of International Military Tribunal for the Far East, 1946, p.23). There was no explicit mention of rape or sexual violence in the definition, leaving them to fall into the broad category of ‘other inhumane acts’. The 2000 Tokyo Women’s Tribunal stressed this view later on (Charter of The Women’s International Tribunal on Japanese Military Sexual Slavery, 2000). Fundamentally, explicit acknowledgment of the sexual violence committed by Imperial Japan was not proportional to the scale and graveness of the crimes. Additionally, only suspects whose charges included crimes against peace were tried by the Tokyo Tribunal. All other potential suspects and perpetrators were left in the jurisdiction of other courts, namely those of the Allied powers. Moreover, the suspects were indicted on 55 counts, 36 out of which were entirely centered around charging them with conspiring to wage war with different Allied forces. Only count 54, which charged the accused with having authorized the Japanese military to breach the laws and customs of war, and count 55, which charged the accused with “having recklessly disregarded their legal duty by virtue of their offices to take adequate steps to secure the observance and prevent breaches of the laws and customs of war” (Judgment International Military Tribunal for the Far East, 1948) were concerned with war crimes and crimes against humanity. In other words, crimes against peace were the very center of the Tribunal’s jurisdiction. Out of the 28 defendants tried in the Tokyo Trial, only two were directly prosecuted for their involvement in the Nanjing Massacre. Matsui Iwane, who was Commander in Chief of the Central Asian Expeditionary Forces during the Nanjing Massacre, and the then-foreign minister Hirota Koki were indicted under Counts 54 and 55 among other counts and sentenced to death. Unfortunately, there was no mention of the comfort stations and forced sexual enslavement whatsoever. Henry (2013) argues that the systematic enslavement of the comfort women should have been interpreted as a Japanese war plan to assert its dominance politically, thus be treated with the same level of gravity and attention as war crimes. However, the Tokyo Tribunal is largely seen as an exercise of the ‘victor’s justice (Sellars, 2010). The Allied Forces, led by the United States of America, politicized the IMTFE, using it as an instrument to celebrate their victory and prove the Japanese ‘conspiracy’ to wage war against them. In the process, however, they completely disregarded the victims of sexual atrocities. Japan as a Subject of International Law Prosecuting a few military and political leaders in the Tokyo Tribunal was instrumental to the Allied Forces’ strategy to demilitarize and democratize post-war Japan, as well as detach the nation from its militaristic history (Futamura, 2008). In this sense, they had created dichotomous identities for the military and the state. However, this undermined the need for the state of Japan, as a subject of international law, to take responsibility for its breaches of humanitarian law. According to the International Commission of Jurists (ICJ) (1994), as well as Bellows and The United Nations Economic and Social Council, Commission on Human Rights (1999), Imperial Japan was in clear violation of international customary law and jus cogen norms that had already been established by WWII. Specifically, the comfort women were sex slaves and the process of ‘recruiting’ them was slave trade, both of which were prohibited internationally as a jus cogen norm. Additionally, Japan signed and ratified the International Convention for the Suppression of the Traffic in Women and Children in 1925, a treaty law that further solidified this prohibition. Although Japan had issued a reservation (Convention for the Suppression of the Traffic in Women and Children, 1925), declaring the treaty shall not apply to Korea, Taiwan, and Kwantung, Korean women were still protected under the jus cogen norm outlawing slavery and slave trade. Similarly, mass rapes both during the 1937 Nanjing Massacre and at comfort stations were violations of customary law, reflected in Article 46 of the 1907 Hague Convention Respecting the Laws and Customs of War on Land (Bellows & The United Nations Economic and Social Council, Commission on Human Rights, 1999). Article 46 of the 1907 Hague Convention requires that family honor and rights be protected, which encompasses a woman’s right to bodily integrity. Article 2 declares the Hague Convention applicable only to signatory belligerents, making it inapplicable to the comfort women system. Nonetheless, conflict-related sexual violence was prohibited under customary law by WWII. Whereas the Tokyo Tribunal recognized the Nanjing Massacre and dismissed comfort women, discourse around the responsibility of Japan is mainly focused on the bilateral relations between South Korea and Japan. With regards to Japan’s accountability, the South Korean government has demanded a formal apology and financial compensation for individual victims. Moreover, the United Nations Human Rights Bodies (2014) have made repeated recommendations that Japan take legal responsibility by prosecuting the perpetrators internally, apologize formally, educate its public on the matter and compensate individual victims. In a fact sheet outlining the measures taken by the Government of Japan on the Comfort Women Issue, the Ministry of Foreign Affairs of Japan asserts that the 1951 San Francisco Peace Treaty and the 1965 Agreement on the Settlement of Problems concerning Property and Claims and on Economic Cooperation between Japan and the Republic of Korea legally settled all issues concerning war reparations and comfort women issue. This inevitably calls for an examination of the two treaties. The 1965 treaty between Japan and South Korea is predominantly concerned with economic cooperation, as well as diplomatic relations, and has no explicit acknowledgment of the comfort women issue. According to Article I of the treaty, Japan was to provide $ 300,000,000 in grants and $200,000,000 in loans as economic cooperation. Article II states that “The Contracting Parties confirm that [the] problem concerning property, rights and interests of the two Contracting Parties and their nationals (including juridical persons) and concerning claims between the Contracting Parties and their nationals, including those provided for in Article IV, paragraph (a) of the Treaty of Peace with Japan signed at the city of San Francisco on September 8, 1951, is settled completely and finally” (Agreement on the Settlement of Problems concerning Property and Claims and on Economic Cooperation between Japan and the Republic of Korea, 1965). Article I and II are the only aspects of the treaty that afford Japan the possibility of subjectively interpreting it as a legal settlement of the comfort women issue. Nevertheless, the treaty contains no explicit acknowledgment of the sexual enslavement of Korean women and is primarily an economic treaty. In regards to victims of other countries, such as the Philippines, China, and the Netherlands, Japan argued that it assumed responsibility through the 1951 San Francisco Treaty. Article 14(a) states that It is recognized that Japan should pay reparations to the Allied Powers for the damage and suffering caused by it during the war. Nevertheless, it is also recognized that the resources of Japan are not presently sufficient, if it is to maintain a viable economy, to make complete reparation for all such damage and suffering and at the same time meet its other obligations” (San Francisco Peace Treaty, 1951). The United Nations Special Rapporteur on Violence Against Women, its Causes and Consequences (1996) held that neither the 1951 San Francisco Treaty nor the 1965 bilateral treaty between Japan and Korea was formally concerned with compensating the comfort women nor addressing the human rights consequences of the Japanese wartime sexual violence. This view is further validated by the fact that at the time these treaties were signed, there was very little awareness of the comfort women system nor the Japanese military’s systematic involvement in its establishment (Bellows & The United Nations Economic and Social Council, Commission on Human Rights, 1999). In conclusion, there was little to no international legal order to hold Japan accountable specifically for its large-scale institutionalized sexual slavery and violence. Conclusion: Where were the women? In her book Bananas, Beaches and Bases, Enloe (2014) asks ‘where are the women?’. Indeed, a feminist examination of the 1946 International Military Tribunal on the Far East, as well as the two treaties associated with the comfort women issues leads to the same question - where were the women? Why did international law pay little to no attention to such atrocious violations of women’s rights as the 1937 Nanjing Massacre and the sexual slavery of comfort women? At the heart of the Tokyo Tribunal was the Allies’ fixation with criminalizing the so-called Japanese conspiracy to wage war against the victorious nations, which undermined the attention sexual crimes should have gotten. The Tokyo Tribunal’s complete denial of the comfort women issue enabled the Japanese government to deny legal accountability, disguising unrelated economic and diplomatic treaties as an act of compensation to victim nations. Fundamentally, such acts were results of a gender-blind international legal order, which disproportionately focused on issues of war, relegating women’s struggles to the sphere of ‘low politics’. The same question can be asked about international law and global politics in general. From a feminist perspective, the 1907 Hague Convention’s interpretation of rape and sexual violence as a violation of ‘family honor’ and not a woman’s right to bodily integrity is evidence of the gender-blind structure of international law. The lack of formally codified laws protecting women enabled many other states besides Japan and countless individuals to commit sexual violence against women and escape responsibility. It was only in 1979 that the United Nations initiated the Convention on the Elimination of All Forms of Discrimination against Women, the first treaty which focused solely on women’s problems. It took around 50 decades after WWII for the international community to start prosecuting the perpetrators of sexual violence under international criminal law, namely in the International War Crimes Tribunals for the Former Yugoslavia and Rwanda, as well as the International Criminal Court. Asserting that women’s issues need to be considered at a political level, this essay endorses Ward’s (2018) suggestion to establish and adopt a Convention against Rape and Other Forms of Sexual Violence, asserting this would further solidify the protection of women under international law. Similarly, further scholarly research could examine possible enforcement mechanisms regarding wartime sexual violence under international law. Lastly, realism could fill the research gap of the feminist perspective, by offering an insight into the reason why states are so concerned with issues of high politics. Realism holds that in a self-help system imposed by the anarchic structure of international relations, states are only motivated by their pursuit of survival and security. In this sense, international law is an instrument of self-interest, rather than an enforcement mechanism. Understanding the legal order surrounding Japanese wartime sexual violence in the context of total war, and the belligerent states’ need to ensure their survival adds a different perspective. Although realism and feminism are seen as two contrasting theories, a combined study would be helpful in this context.