UNITED
NATIONSE
Distr.
GENERAL

Economic and Social
Council

E/CN.4/Sub.2/1998/13
22 June 1998
Original:

ENGLISHCOMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention ofDiscrimination and Protectionof Minorities
Fiftieth session
Item 6 of the provisional agenda

CONTEMPORARY FORMS OF SLAVERY
Systematic rape, sexual slavery and slavery-like practices
during armed conflict
Final report submitted by Ms. Gay J. McDougall, Special Rapporteur

CONTENTSParagraphs

Page. . . . . . . . . . . . . . . . . . . . . .

1 -

6

3

PURPOSE AND CONTENT OF THE REPORT . . . . . . . .

7 -

19

4

A.

Purpose. . . . . . . . . . . . . . . . . . .

9 -

12

4

B.

Context. . . . . . . . . . . . . . . . . . .

13 -

19

6

DEFINITIONS OF CRIMES . . . . . . . . . . . . . .

20 -

33

7

A.

Sexual violence, including rape

21 -

26

7

B.

Slavery, including sexual slavery

27 -

33

9

Introduction
I.

II.

GE.98-12881(E). . . . . . .
. . . . . .

E/CN.4/Sub.2/1998/13
page 2

CONTENTS (continued)
Paragraphs

Page

THE LEGAL FRAMEWORK FOR PROSECUTING SEXUAL SLAVERYAND SEXUAL VIOLENCE, INCLUDING RAPE, UNDERINTERNATIONAL LAW . . . . . . . . . . . . . . . .

34 -

73

10

A.

Crimes against humanity. . . . . . . . . . .

38 -

45

11

B.

Slavery. . . . . . . . . . . . . . . . . . .

46 -

47

13

C.

Genocide . . . . . . . . . . . . . . . . . . .

48 -

52

13

D.

Torture. . . . . . . . . . . . . . . . . . .

53 -

55

14

E.

War crimes . . . . . . . . . . . . . . . . . .

56 -

73

15

IV.

HOLDING INDIVIDUALS RESPONSIBLE . . . . . . . . .

74 -

84

19

V.

OBLIGATIONS TO SEARCH FOR AND PROSECUTE WAR
CRIMINALS . . . . . . . . . . . . . . . . . . . .

85 -

87

21

THE RIGHT TO AN EFFECTIVE REMEDY AND THE DUTY
TO COMPENSATE . . . . . . . . . . . . . . . . . .

88 -

90

22

PROSECUTIONS AT THE NATIONAL LEVEL

91 - 100

23

III.

VI.

VII.

. . . . . . .

A.

Significance of national prosecutions . . . .

91 -

94

23

B.

Common failings of municipal law andprocedure . . . . . . . . . . . . . . . . . .

95 - 10024. . . . . . . . . . . . . . . . .

101 - 109

26

. . . . . . . . . . . . . . . . . . .

110 - 115

30

Appendix: An analysis of the legal liability of theGovernment of Japan for “comfort women stations”
established during the Second World War . . . . . . . . . . . . . . . .

38

VIII.
IX.

RECOMMENDATIONSCONCLUSIONSE/CN.4/Sub.2/1998/13
page 3Introduction
1.
At its forty-fifth session, the Sub-Commission on Prevention ofDiscrimination and Protection of Minorities, noting the informationtransmitted to the Sub-Commission by its Working Group on Contemporary Formsof Slavery concerning the sexual exploitation of women, as well as other formsof forced labour, during wartime, decided to entrust Ms. Linda Chavez, as
Special Rapporteur, with the task of undertaking an in-depth study on thesituation of systematic rape, sexual slavery and slavery-like practices during
wartime, including internal armed conflict. The Sub-Commission requested theSpecial Rapporteur to submit her preliminary report at the forty-sixth session
and her final report at the forty-seventh session.
2.
At its forty-sixth session the Sub-Commission, considering Commission on
Human Rights resolution 1994/103 in which it requested the Sub-Commission toreconsider its decisions to recommend a number of studies, decided to request
Ms. Chavez to submit, without financial implications, a working paper on thesituation of systematic rape, sexual slavery and slavery-like practices during
wartime at its forty-seventh session.
3.
Ms. Chavez duly presented her working paper (E/CN.4/Sub.2/1995/38) andthe Sub-Commission, in resolution 1995/14, welcomed the paper. The Special
Rapporteur submitted her preliminary report at the forty-eighth session(E/CN.4/Sub.2/1996/26), summarizing the purpose and scope of the study, thehistory of systematic rape as an instrument of policy, relevant international
norms, issues of responsibility and liability, forms with jurisdiction to try
perpetrators, possible sanctions against violators and possible forms of
reparation.
4.
In May 1997, Ms. Chavez informed the High Commissioner/Centre for Human
Rights that she was not able to submit a final report at the forty-ninth
session of the Sub-Commission and expressed her wish that the study becontinued by another member of the Sub-Commission (E/CN.4/Sub.2/1997/12).
At its forty-ninth session, the Sub-Commission, in its decision 1997/114,
appointed Ms. Gay J. McDougall as Special Rapporteur to prepare a final reporton systematic rape, sexual slavery and slavery-like practices during armed
conflict, including internal armed conflict. 1/
5.
The use of sexual slavery and sexual violence as tactics and weapons of
war is an all too common yet often overlooked atrocity that demands consistentand committed action on the part of the global community. Although a wide
range of responses is needed, this final report focuses primarily on thedevelopment of international criminal law as a fruitful area for effective
action at the national and international levels to end the cycle of impunity
for slavery, including sexual slavery, and for sexual violence, including
rape. This report also advances policy and practical recommendations that may
guide the investigation, prosecution and prevention of sexual slavery andsexual violence in armed conflicts.
6.
One significant impetus for the Sub-Commission’s decision to commission
this study was the increasing international recognition of the true scope andcharacter of the harms perpetrated against the more than 200,000 women
enslaved by the Japanese military in “comfort stations” during the Second

E/CN.4/Sub.2/1998/13
page 4

World War. Recognizing the need to address past, unremedied human rights,
humanitarian law and international criminal law violations involving sexual
slavery and sexual violence, a full analysis of the continuing legal liability
for these crimes against humanity is contained in the appendix to the present
reports.
I.

PURPOSE AND CONTEXT OF THE REPORT

7.
Parties to contemporary armed conflicts, both international andinternal, increasingly target civilian populations when waging hostilities.
Women, including girl children, comprise a large segment of these targeted andat-risk populations. They are exposed not only to the violence anddevastation that accompany any war but also to forms of violence directed
specifically at women on account of their gender. Recognizing the historiclack of protection of women’s fundamental rights, the World Conference on
Human Rights, in the Vienna Declaration and Programme of Action, emphasizedthat “[v]iolations of the human rights of women in situations of armed
conflict are violations of the fundamental principles of international humanrights and humanitarian law [and] require a particularly effective response”.
8.
An effective response requires that acts of sexual violence and slavery
must be properly documented, the perpetrators brought to justice, and thevictims provided with full and effective redress. The appropriate
characterizations of these acts as international crimes of slavery, crimes
against humanity, genocide, grave breaches of the Geneva Conventions, war
crimes or torture is also essential. These crimes have particular legal
consequences as jus cogens crimes that are prohibited at all times and in all
situations. In addition, this report emphasizes that practices such as thedetention of women in “rape camps” or “comfort stations”; forced, temporary“marriages” to soldiers; and other practices involving the treatment of womenas chattel, are both in fact and in law forms of slavery and, as such,
violations of the peremptory norm prohibiting slavery.
A.

Purpose9.
The first purpose of this report is to reiterate the call for a responseto the use of sexual violence and sexual slavery during armed conflict. It isimperative to acknowledge the immeasurable injury to body, mind and spiritthat is inflicted by these acts. During times of peace, women are subjected
to all forms of gender-based persecution, discrimination and oppression,
including acts of sexual violence and slavery which often go unpunished evenin functional criminal justice systems. The horrors that women face greatly
expand in number, frequency and severity during armed conflicts, and are notconfined to gender-specific abuses. However, it is clear that women doexperience a significantly increased risk of violence and slavery of a sexual
nature during armed conflict situations - a risk that must not be accepted ortolerated. In addition, at the same time that abuses directed at women
increase during armed conflicts, the degree of impunity with which such
violence is committed may also increase. This overall deterioration in theconditions of women in armed conflict situations is due not only to thecollapse of social restraints and the general mayhem that armed conflict
causes, but also in many cases to a deliberate and strategic decision on theE/CN.4/Sub.2/1998/13
page 5part of combatants to intimidate and destroy “the enemy” as a whole by raping
and enslaving women who are identified as members of the opposition group.
10.
The second purpose of this report is to emphasize the true nature andextent of the harms suffered by women who are raped, sexually abused andenslaved by parties to an armed conflict. There are legions of documented
reports of sexual violence committed against women in armed conflict. Suchdocumentation reveals examples of women being gang-raped in their homes and in
front of their family members; women being held in detention centres or
military stations and raped numerous times every day for weeks or even months;
women being repeatedly raped by soldiers under the guise of “marriage”; womenbeing held captive in situations involving both forced labour (as cooks,
porters, minefield sweepers) and forced sex; and reports of women being
mutilated, humiliated and tortured sexually before being killed or left to diefrom their injuries. The veil of silence that surrounds this violence mustbe lifted through prosecutions and other forms of redress, including
compensation, to ensure that justice is done, dignity is repaired and future
violations are prevented.
11.
The third purpose of this report is to examine prosecutorial strategies
for penalizing and preventing international crimes committed against women
during armed conflict. This study invents no new crimes or penalties and it
proposes no new standards of liability for State or non-State actors. The
report primarily restates and reinforces the established law that is alreadyapplicable, although not always applied. In addition, the report identifies
those areas where further elaboration and development of the existing legal
framework would facilitate more effective prosecutions.
12.
Notwithstanding the repeated failure of States and international legal
bodies to fulfil their obligations to bring the perpetrators of rape andslavery during armed conflict to justice in accordance with international
norms and standards that already exist, there is cause for optimism. Advances
are being made to end the cycle of impunity. In the aftermath of the Second
World War, there were very few prosecutions for slavery and even fewer for
rape. At the time of writing of this report, the International Criminal
Tribunal for the Former Yugoslavia has issued numerous indictments charging
crimes based on sexual violence, and the International Tribunal for Rwanda isunder increasing pressure to step up its investigations and prosecutions ofsexual violence. In the very period of time during which this report wascommissioned and completed, great strides have also been made to address
gender-based violence in armed conflict not only in the context of the ad hocinternational criminal tribunals, but also with respect to the proposedpermanent International Criminal Court. This study, therefore, is offered ata particularly timely juncture in the development of international criminal
law and is intended to advance ongoing discussions over proper venues, rules
and procedures that may usefully advance prosecutions of sexual violence andslavery by domestic courts, the ad hoc international criminal tribunals andthe proposed permanent International Criminal Court. To this end, thedefinitions of the crimes are set forth in this report with a level of
specificity that is intended to assist in identifying the elements of an
offence and the level of legal responsibility of each relevant State or
non-State actor, including those individuals within a given command hierarchy
and those who through their complicitous acts make the offence possible.

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page 6

B.

Context

13.
As has been noted by many international legal commentators, thedevelopment of international law, including international humanitarian, humanrights and criminal law, was based on the paradigm of male lives, particularly
the lives of men in the public sphere. 2/ The failure to consider theexperience of women resulted in a human rights legal framework which failed torecognize forms of violence directed against women as worthy of international
State accountability. However, this legacy of marginalization has begun to
shift, as evidenced by the adoption of General Assembly resolution 48/104 of
20 December 1990 in which the Assembly, recalling that the Economic and Social
Council had recognized “that violence against women ... had to be matched byurgent and effective steps to eliminate its incidence”, proclaimed the
Declaration on the Elimination of Violence against Women. Similarly,
humanitarian law has inconsistently and inadequately addressed violenceagainst women during times of armed conflict, for example by failing to
explicitly articulate rape as a grave breach of the Geneva Conventions. This
deficiency has also begun to change as the International Criminal Tribunal for
the Former Yugoslavia and the International Tribunal for Rwanda, and hopefully
too the proposed permanent International Criminal Court, give more attention
and redress to violence directed against women.
14.
While this report considers the many instances and forms of sexual
violence and sexual slavery that may arise in armed conflict situations, thespecific mandate of this study concerns the implications of “systematic rape,
sexual slavery and slavery-like practices committed during armed conflict,including internal armed conflict”. This focus requires an understanding of
the following key points.
15.
Firstly, it is the internationally accepted view that regardless ofwhether sexual violence committed in armed conflict occurs on an apparently
sporadic basis by marauding soldiers or as part of a comprehensive plan tosystematically attack and terrorize a targeted population, all acts of sexual
violence, including rape, must be recognized, condemned and prosecuted.
Sexual violence and slavery have been used pervasively and consistently intimes of war because they are clearly an effective means of demoralizing the
opposition. 3/ To undercut the effectiveness of these barbaric acts andpractices, the international community must hold those responsible liable forall such violations.
16.
Secondly, international humanitarian law as well as municipal laws haveoften contained provisions for the protection of women’s “honour”, implyingthat the survivor of sexual violence is somehow “dishonoured” in the attack.
The present report maintains that such characterizations are incorrect, as the
only party without honour in any rape or in any situation of sexual violenceis the perpetrator. While rape is indeed an assault on human dignity andbodily integrity, it is first and foremost a crime of violence.
17.
Thirdly, with respect to the title of this report, the term “systematic”
is used as an adjective to describe certain forms of rapes, not to denote theinvention of a new crime or a new burden of proof that must be established toprosecute an act of rape. Similarly, the term “sexual” is used in this reportas an adjective to describe a form of slavery, not to denote a separate

E/CN.4/Sub.2/1998/13
page 7

offence. In this context, the use of the descriptive term “sexual” highlights
the historic and contemporary reality that slavery amounts to the treatment ofa person as chattel, which often includes sexual access and forced sexual
activity. The link between rape and slavery in the mandate for this report is
not accidental; many cases of sexual violence committed during armed conflictare most appropriately prosecutable as slavery.
18.
Fourthly, this report also recognizes that there is a crucial need topresent a comprehensive analysis of the nature and consequences of sexual
violence directed against both women and men, with a clear understanding of
the gender implications of sexual violence. As noted in the Beijing
Declaration and Platform for Action, women are undoubtedly at greater risk ofsexual violence and face gender-related obstacles in seeking redress for these
violations at all levels and in all legal systems. In addition to thephysical and psychological wounds caused by sexual violence, women survivorsof sexual violence also encounter gender-specific discrimination andill-treatment within the family and the community due to the subordination anddevaluation of women and girls and of their roles in society. The obstacles
that often prevent women from asserting their rights to be free from sexual
violence are further compounded by the unwillingness of society to engage inconstructive and earnest dialogue on the issues of sex and sexuality ingeneral, and sexual violence in particular. In addition, even more damaging
than the veil of silence that surrounds rape and sexual violation is thetendency to marginalize acts of violence when committed against women. By
incorporating an understanding of gender, 4/ into the legal framework for
responding to systematic rape and sexual slavery, the full range ofobligations and legal accountability of all parties to a conflict may be
carefully articulated and concrete steps may be outlined to ensure adequate
prevention, investigation, and criminal and civil redress, including
compensation of victims. 5/
19.
The present report exposes the paradox that while the prosecutorial
framework exists, and has existed since before the Second World War, there has
been a troubling scarcity of prosecutions with respect to acts of sexual
violence committed in armed conflict. Some Governments, citing this dearth ofprosecutions, claim that the law is new or does not exist. This lack ofprecedent, however, is more accurately attributable to the failure to respondto acts of violence committed against women, particularly sexual violence, as
grievous crimes that must be reported, investigated, prosecuted andcompensated to the full extent of the law.
II.

DEFINITIONS OF CRIMES20.
The definitions of the crimes of “sexual violence”, including “rape”,
and of “slavery”, including “sexual slavery”, contained in this report
incorporate both the acts themselves and other related forms such as “attempt”
and “conspiracy” to commit the offence; “inciting” and “soliciting” others tocommit the offence; and “aiding and abetting” the commission of the offence.
A.

Sexual violence, including rape

21.
Rape falls within the broader category of “sexual violence”, which thisreport defines as any violence, physical or psychological, carried out throughE/CN.4/Sub.2/1998/13
page 8sexual means or by targeting sexuality. 6/ Sexual violence covers both
physical and psychological attacks directed at a person’s sexual
characteristics, such as forcing a person to strip naked in public, mutilatinga person’s genitals, or slicing off a woman’s breasts. 7/
22.
Sexual violence also characterizes situations in which two victims areforced to perform sexual acts on one another or to harm one another in asexual manner. Such crimes are often intended to inflict severe humiliationon the victims and when others are forced to watch acts of sexual violence, it
is often intended to intimidate the larger community. For example, the Officeof the Prosecutor to the International Criminal Tribunal for the Former
Yugoslavia brought charges for violations of the laws of war and crimes
against humanity in a case in which a prisoner in a Bosnian Serb prison camp
was forced by a guard to bite off the testicle of another prisoner in thepresence of a group of other prisoners. 8/ In another case in a different
detention facility, a Bosnian Serb police chief was indicted for forcing two
detainees to “perform sexual acts upon each other in the presence of several
other prisoners and guards.” 9/23.
There is no explicit definition of rape in international humanitarian or
human rights law, although there are numerous, different formulations of rapein municipal legal systems. 10/ The definition of rape that is advanced in
the present study reflects current international elaborations, modern
applications, examples derived from municipal law and practice, working
definitions of rape that have been submitted by the Office of the Prosecutor
to the International Criminal Tribunal for the Former Yugoslavia and to theInternational Tribunal for Rwanda, and definitions that have been adopted byvarious international human rights non-governmental organizations.
24.
“Rape” should be understood to be the insertion, under conditions offorce, coercion or duress, of any object, including but not limited to apenis, into a victim's vagina or anus; or the insertion, under conditions offorce, coercion or duress, of a penis into the mouth of the victim. Rape isdefined in gender-neutral terms, as both men and women are victims ofrape. 11/ However, it must be noted that women are more at risk of being
victims of sexually violent crimes and face gender-specific obstacles inseeking redress. Although this report retains “penetration” in the definitionof rape, it is clear that the historic focus on the act of penetration largely
derives from a male preoccupation with assuring women’s chastity andascertaining paternity of children. It is important, nevertheless, toemphasize that all forms of sexual violence, including but not limited torape, must be condemned and prevented.
25.
Lack of consent or the lack of capacity to consent due, for example, tocoercive circumstances or the victim’s age, can distinguish lawful sexual
activity from unlawful sexual activity under municipal law. The manifestly
coercive circumstances that exist in all armed conflict situations establish apresumption of non-consent and negates the need for the prosecution toestablish a lack of consent as an element of the crime. In addition, consent
is not an issue as a legal or factual matter when considering the command
responsibility of superior officers who ordered or otherwise facilitated thecommission of crimes such as rape in armed conflict situations. The issue ofconsent may, however, be raised as an affirmative defense as provided for inE/CN.4/Sub.2/1998/13
page 9the general rules and practices established by the International Criminal
Tribunal for the Former Yugoslavia and the International Tribunal for
Rwanda. 12/ The defense in such cases must initially satisfy the judicial
body hearing the case that the evidence of consent is “relevant andcredible”. 13/
26.
The term “systematic” is used in this report as an adjective to describe
certain forms of rapes, not to denote the invention of a new crime or a new
burden of proof that must be established to prosecute an act of rape. An actof rape, in addition to being a crime in its own right, may fall within alarger pattern of widespread or policy-based attacks on a targeted group,
thereby establishing the elements of crimes against humanity, as discussed in
section III.A. of this report. It is not necessary, however, to prove theoccurrence of “systematic rape” in order to prosecute a single act of rape
under the rubric of crimes against humanity, just as it is not necessary toprove “systematic murder” or “systematic torture” to establish a claim undercrimes against humanity.
B.

Slavery, including sexual slavery

27.
The 1926 Slavery Convention sets out the first comprehensive and now
the most widely recognized definition of slavery. As adapted from the1926 Slavery Convention, “slavery” should be understood to be the status orcondition of a person over whom any or all of the powers attaching to theright of ownership are exercised, including sexual access through rape orother forms of sexual violence.
28.
In addition to treaty law, the prohibition of slavery is a jus cogens
norm in customary international law. The crime of slavery does not require
government involvement or State action, and constitutes an international crime
whether committed by State actors or private individuals. Further, whileslavery requires the treatment of a person as chattel, the fact that a person
was not bought, sold or traded does not in any way defeat a claim of slavery.
29.
Implicit in the definition of slavery are notions concerning limitations
on autonomy, freedom of movement and power to decide matters relating to one’s
sexual activity. 14/ The mere ability to extricate oneself at substantial
risk of personal harm from a condition of slavery should not be interpreted asnullifying a claim of slavery. In all cases, a subjective, gender-conscious
analysis must also be applied in interpreting an enslaved person’s reasonable
fear of harm or perception of coercion. This is particularly true when thevictim is in a combat zone during an armed conflict, whether internal orinternational in character, and has been identified as a member of the
opposing group or faction.
30.
The term “sexual” is used in this report as an adjective to describe aform of slavery, not to denote a separate crime. In all respects and in all
circumstances, sexual slavery is slavery and its prohibition is a jus cogens
norm. The “comfort stations” that were maintained by the Japanese militaryduring the Second World War (see appendix) and the “rape camps” that have been
well documented in the former Yugoslavia 15/ are particularly egregious
examples of sexual slavery. Sexual slavery also encompasses situations where
women and girls are forced into “marriage”, domestic servitude or other forced

E/CN.4/Sub.2/1998/13
page 10

labour that ultimately involves forced sexual activity, including rape by
their captors. For instance, in addition to the cases documented in Rwanda
and the former Yugoslavia, there are reports from Myanmar of women and girls
who have been raped and otherwise sexually abused after being forced into
“marriages” or forced to work as porters or minefield sweepers for the
military. 16/ In Liberia, there are similar reports of women and girls who
have been forced by combatants into working as cooks and who are also held as
sexual slaves. 17/
31.
Sexual slavery also encompasses most, if not all forms of forced
prostitution. The terms “forced prostitution” or “enforced prostitution”
appear in international and humanitarian conventions but have been
insufficiently understood and inconsistently applied. “Forced prostitution”
generally refers to conditions of control over a person who is coerced byanother to engage in sexual activity.
32.
Older definitions of forced prostitution focus either in vague terms on“immoral” attacks on a woman's “honour”, or else they are nearly indistinct
from definitions that seem more accurately to describe the condition ofslavery. Despite these limitations, as the crime is clearly criminalized
within the Geneva Conventions and the Additional Protocols thereto, it remains
a potential, albeit limited alternative tool for future prosecutions of sexual
violence in armed conflict situations.
33.
As a general principle it would appear that in situations of armed
conflict, most factual scenarios that could be described as forced
prostitution would also amount to sexual slavery and could more appropriately
and more easily be characterized and prosecuted as slavery.
III.

THE LEGAL FRAMEWORK FOR PROSECUTING SEXUAL SLAVERY AND SEXUAL
VIOLENCE, INCLUDING RAPE, UNDER INTERNATIONAL LAW

34.
The legal framework for prosecuting sexual slavery and sexual violence
has evolved from at least three different sources of law, including humanrights, humanitarian and international criminal law, each with different
customary and treaty-based origins and historic precedents. Because of thesubordination of women in societies worldwide, acts of sexual slavery andsexual violence are not always sufficiently reflected in the explicit languageof international criminal provisions, including those prohibiting slavery,
crimes against humanity, genocide, torture and war crimes. 18/ This reportexamines the multiple sources of authority which do exist to groundinternational and national prosecutions of sexual slavery and sexual violence
committed during armed conflict.
35.
The framework for prosecuting international crimes often borrows andbuilds upon practices at the municipal level. In some cases, the policy
concerns for prosecuting international crimes are similar to the concerns
underlying national prosecutions. However, in many cases, international
criminal law seeks to advance policy goals which are specific to the needs ofinternational or transnational action. Thus, it is not always appropriate to
extrapolate international standards from municipal legal systems. The present
report focuses on crimes arising in the context of armed conflict and while
many of them are prosecutable as peacetime offences under municipal laws, theE/CN.4/Sub.2/1998/13
page 11

legal analysis required to prevent, investigate and prosecute sexual slavery
and sexual violence during armed conflict is motivated by policy concerns
particular to the international legal context.
36.
Sexual slavery and sexual violence when committed during armed conflictmay be characterized under certain conditions as customary violations ofjus cogens norms. The Vienna Convention on the Law of Treaties in article 53,
defines jus cogens norms as those standards that are “accepted and recognizedby the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm ofgeneral international law having the same character”. In addition,jus cogens
norms are recognized as delicts of universal concern, so that any State may
properly prosecute jus cogens offences, even if the prosecuting State lacks
any link to the nationality of the offender or the victim or any territorialconnection to the commission of the crime and could not otherwise properly
assert jurisdiction.
37.
The various international crimes that correspond to violations of thesejus cogens norms include slavery, crimes against humanity, genocide, certain
war crimes and torture. 19/ These crimes are subject under customaryinternational law to universal jurisdiction and they are exempt in most cases
from the effect of any statute of limitations to prosecutions. 20/ States,
including successor Governments, have an obligation to ensure that those who
violate such norms do not do so with impunity and are brought to justice,either by prosecution within the State or extradition for prosecution inanother State. 21/ Although war crimes by definition require a nexus to armed
conflict, the prohibitions against slavery, crimes against humanity, genocide
and torture apply in all situations, including in all armed conflicts,
internal strife and peacetime.
A.

Crimes against humanity

38.
A widespread or systematic 22/ attack against a civilian population including widespread or systematic persecution based on racial, ethnic,
religious, political or other grounds - may be prosecuted as a crime against
humanity. 23/ It is significant to note that although crimes against humanity
have most often been charged in armed conflict situations, they do not requirea nexus to any armed conflict. 24/ In addition, both State and non-State
actors can be prosecuted for crimes against humanity.
39.
Proof of policy, plan or design is generally considered to be anecessary element of a prosecution for crimes against humanity. 25/ The
failure to take action to address widespread or systematic attacks against acivilian population can be sufficient to establish the requisite element ofpolicy, plan or design.
40.
In order to more effectively and responsively address widespread orsystematic attacks on a population in which sexual slavery and sexual violence
are used as tactics, gender should be recognized as one of the grounds ofpersecution under crimes against humanity. Excluding any group capable ofbeing targeted from the protection of international norms because some aspectof their individual or collective identity has not been formally or explicitly
recognized is inexcusable under fundamental principles of justice.26/ Thus,

E/CN.4/Sub.2/1998/13
page 12current enumerations of prohibited grounds of persecution should be consideredillustrative rather than exclusive, and gender, along with other targetedgroup identities, should be considered protected under crimes against
humanity.
41.
Sexual violence, including rape, falls within the general prohibition of“inhumane acts” 27/ in the traditional formulation of crimes against humanity,
as taken from the Charter of the International Military Tribunal at Nürnberg(Nürnberg Charter), Control Council Law No. 10, and the Charter of theInternational Military Tribunal for the Far East (Tokyo Charter). 28/
Unfortunately, sexual violence was rarely prosecuted as a crime against
humanity following the Second World War.
42.
In more recent codifications, rather than relying on residual provisions
prohibiting inhumane acts, rape has been listed explicitly as a crime against
humanity when committed in the course of either an internal or aninternational armed conflict and directed against any civilian population,even though it is now well established that crimes against humanity do not
require any nexus to armed conflict at all. In particular, the statutes ofboth ad hoc international criminal tribunals established in 1993 and 1994 toprosecute international crimes occurring in the former Yugoslavia and in
Rwanda list rape independently as a separate qualifying offence under thedefinition of crimes against humanity. Both tribunals, moreover, have broughtcharges for crimes against humanity based on sexual violence.
43.
A single case of serious sexual violence, including rape, may be grounds
for prosecution for crimes against humanity, so long as prosecutors link thatsingle violation to a larger series of violations of fundamental human rights
or humanitarian law that evidence a widespread or systematic attack against acivilian population.
44.
Slavery has long been recognized as a crime against humanity. The
Nürnberg Charter and Control Council Law No. 10, which was established tofacilitate national prosecutions of war criminals in Germany following theSecond World War, both listed enslavement under the sections addressing crimes
against humanity. Similarly, article 5 of the Tokyo Charter also listed
enslavement and other inhumane acts committed against any civilian population
as crimes against humanity. More recent codifications of crimes against
humanity include article 5 of the Statute of the International Criminal
Tribunal for the Former Yugoslavia 29/ and article 3 of the Statute of theInternational Tribunal for Rwanda, 30/ both of which explicitly list
enslavement as constituent offences of crimes against humanity.
45.
The International Criminal Tribunal for the Former Yugoslavia hasrecently brought an indictment for slavery as a crime against humanity,
charging a member of an elite Serb paramilitary unit and a paramilitary leader
in the town of Foca with crimes against humanity for acts of rape andslavery. 31/ The defendants are charged with detaining nine women in a
private apartment where the women were sexually assaulted on a regular basis
and forced to work both inside and outside of the home. According to theindictment, four of the women were eventually sold to other soldiers. The
manner in which these women were detained and ordered to perform manual labour
while being subjected to constant sexual assault clearly justifies a charge ofE/CN.4/Sub.2/1998/13
page 13crimes against humanity for slavery. It should be noted, moreover, that theexchange of money for some of the women was not a necessary element of thecrime; it merely demonstrated the extent to which the Serb paramilitary
soldiers exercised the powers attaching to the right of ownership over the
women.
B.

Slavery46.
In addition to charging slavery as a crime against humanity or as a war
crime, charges of slavery may also be brought on an independent basis against
both State actors and private individuals during wartime or peacetime.
Indeed, prohibitions against slavery and slave-like practices were among thefirst prohibitions to achieve the status of peremptory norms of customaryinternational law or jus cogens. 32/ The evolution of this fundamental humanrights norm began in the nineteenth century and by the beginning of thetwentieth century it had already become evident that international
prohibitions concerning slavery and the slave trade had attained the status ofcustomary international law. 33/
47.
The customary international prohibitions against slavery evolved in partto respond to difficult jurisdictional concerns, since slave traders, likepirates, historically operated on the high seas and were not necessarily
subject to the sovereign control or jurisdiction of any single State.
Assuch, the international community recognized the need to attach individual
criminal responsibility to all perpetrators of the crime, irrespective of thelocation of the crime, the level of State involvement or the extent to which
the laws or practices of any State may have sanctioned the act. Underinternational law, therefore, modern prohibitions against slavery allow forpure universal jurisdiction over any State or non-State actor in any caseinvolving slavery or the slave trade. This status may be particularly usefulin prosecuting individual cases of sexual slavery committed during armed
conflict, as the prosecution in such a case need not establish the existenceof State involvement or acquiescence, the existence of a widespread orsystematic pattern of abuse, or any nexus between the crime and an armed
conflict.
C.

Genocide

48.
Both in its own right and as a crime against humanity, the prohibition
against genocide has clearly attained jus cogens status. 34/ Under certain
circumstances acts of rape, sexual slavery or other sexual violence may also
be characterized as constituent acts of the crime of genocide as defined inarticle II of the Convention on the Prevention and Punishment of the Crime of
Genocide (the Genocide Convention). The key element of the crime of genocide
is the specific intent on the part of the perpetrator to physically destroy,
in whole or in part, a protected group, namely a national, ethnic, racial, or
religious group. Gender is not listed as a protected group under the Genocide
Convention. Nonetheless, targeting a protected group through attacks against
its female members is sufficient to establish the crime of genocide.
49.
The prosecution need not establish an intent to destroy the entire groupon a national or an international basis. The intent to destroy a substantial
portion or an important subsection of a protected group or the existence of a

E/CN.4/Sub.2/1998/13
page 14protected group within a limited region of a country is sufficient grounds forprosecution for genocide. Moreover, as national borders may be fluid during
periods of conflict, it is apparent that nearly all localized campaigns of
genocide will likely emphasize the total or eventual elimination of the groupas a whole and will often be linked to a larger national campaign toaccomplish this goal of annihilation.
50.
It is also important to note that the necessary genocidal intent may
be inferred from the perpetrator's actions. The Commission of Experts
established pursuant to Security Council resolution 780 (1982) to examine
violations of humanitarian law in the conflict in the territory of the former
Yugoslavia found that in some cases of genocide “there will be evidence ofactions or omissions of such a degree that the defendant may reasonably be
assumed to have been aware of the consequences of his or her conduct, whichgoes to the establishment of intent”. 35/
51.
The Office of the Prosecutor for both the International Criminal
Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda
has filed charges based on sexual violence and rape as constituent acts of thecrime of genocide. These charges have been brought against persons accused of
actually committing the acts as well as against superior authorities in thesame chain of command.
52.
With the necessary intent element, even a single act of rape may
theoretically be grounds for a prosecution for the crime of genocide, provided
the act was related to a larger series of acts, all of which were designed tobring about the destruction of a targeted group. 36/ In addition, the crimeof genocide does not require any nexus to armed conflict or to State action.
D.

Torture53.
Prohibitions against torture have also emerged as jus cogens norms fromwhich no derogation is permitted. As prohibited by customary norms, the crimeof torture requires the intentional infliction of severe mental or physicalpain or suffering, and a nexus to government action or inaction. In most, if
not all cases described in this report, rape and serious sexual violence
during armed conflict may also be prosecuted as torture. 37/ In addition, theEuropean Court of Human Rights, the Inter-American Commission on Human Rights
and numerous domestic courts have also found acts of custodial rape toconstitute torture.
54.
The Convention against Torture and Other Cruel, Inhuman and Degrading
Treatment or Punishment (the Torture Convention) defines torture in article 1
as “any act by which severe pain or suffering, whether physical or mental, isintentionally inflicted on a person for such purposes as obtaining from him[or her] or a third person information or a confession, punishing him [or her]
for an act he [or she] or a third person has committed or is suspected ofhaving committed, or intimidating or coercing him [or her] or a third person,
or for any other reason based on discrimination of any kind, when such painor suffering is inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official
capacity”.

E/CN.4/Sub.2/1998/13
page 1555.
The Committee on the Elimination of Discrimination against Women has
recognized that violence directed against a woman because she is a woman,
including “acts that inflict physical, mental or sexual harm or suffering”,
represents a form of discrimination that seriously inhibits the ability ofwomen to enjoy human rights and freedoms. 38/ Accordingly, in many cases thediscrimination prong of the definition of torture in the Torture Convention
provides an additional basis for prosecuting rape and sexual violence as
torture.
E.

War crimes

56.
As a category of international crimes, war crimes include grave breaches
and other violations of the Geneva Conventions of 1949, violations of theHague Convention and Regulations of 1907, as well as violations of the laws
and customs of war. Acts of sexual slavery and sexual violence may constitutewar crimes in certain cases. Unlike slavery, crimes against humanity,
genocide and torture - war crimes by definition - require a nexus to armed
conflict, and the most extensive humanitarian law protections of civilians andcombatants are provided during armed conflicts of an international character.
However, those offences which would constitute violations of jus cogens norms
are prohibited during all armed conflicts, regardless of the nature or levelof the hostilities.
1.

War crimes in international armed conflicts

57.
The grave breaches provisions of the Geneva Conventions have both
attained the status of customary international law, 39/ and many grave
breaches and other provisions of the Geneva Conventions have also attained thestatus of jus cogens. 40/ It is important to recognize that “[e]ach HighContracting Party [to the Geneva Conventions] shall be under the obligation to
search for persons alleged to have committed, or to have ordered to becommitted, such grave breaches, and shall bring such persons, regardless of
their nationality, before its own courts”. 41/ To the extent that the grave
breaches provisions may be applied, along with their procedural aspects, as
customary international law in international armed conflicts, this obligation
also applies to States that are not parties to the Conventions.
58.
Acts of sexual violence, including rape, when committed by enemy oroccupying forces during the course of an international conflict, 42/ mayconstitute grave breaches of the Geneva Conventions. 43/ The International
Committee of the Red Cross has noted that rape is “obviously” covered by thegrave breaches provision of article 147 of the Fourth Geneva Convention,
which prohibits “wilfully causing great suffering or serious injury to body orhealth”. 44/ In addition, rape is prohibited by the grave breaches provisions
concerning torture or inhuman treatment. 45/
59.
Rape is also explicitly prohibited in article 27 of the Fourth Geneva
Convention, which states that “[w]omen shall be especially protected against
any attack on their honour, in particular against rape, enforced prostitution,or any form of indecent assault”, and in article 76 (1) of Additional
Protocol I which states that “[w]omen shall be the object of special respectand shall be protected in particular against rape, forced prostitution and anyother form of indecent assault”.

E/CN.4/Sub.2/1998/13
page 1660.
In addition to provisions addressing rape in the Geneva Conventions,the 1907 Hague Convention No. IV concerning the Laws and Customs of War on
Land, which clearly is considered to have attained the status of customaryinternational law, 46/ ensures in article 46 of its annexed Regulations
protection for “family honour and rights” and should be read to cover thecrime of rape. It is important to note, however, that the notion of rape asa violation of honour, rather than as an act of violence, obscures the violent
nature of the crime and inappropriately shifts the focus toward the imputed
shame of the victim and away from the intent of the perpetrator to violate,degrade and injure. Article 46 of the Hague Regulations, moreover, is neutral
as to gender and applies to both female and male victims of sexual violence
committed during armed conflict.
61.
The International Military Tribunal at Nürnberg, countering argumentsthat the Hague Convention should not be applied by the Nürnberg Tribunal as
several of the belligerents in the war were not parties to the Convention,found that the prohibitions in the Hague Regulations were “recognized by all
civilized nations, and were regarded as being declaratory of the laws andcustoms of war which are referred to in article 6 (b) of the [Nürnberg]
Charter”. 47/
62.
Following the Second World War, a Netherlands court in Batavia foundJapanese military defendants who had participated in enslaving 35 Dutch womenand girls in “comfort stations” during the Second World War guilty of war
crimes for acts including rape, coercion to prostitution, abduction of women
In a
and girls for forced prostitution, and ill-treatment of prisoners.48/
more modern context, as noted above both the International Criminal Tribunal
for the Former Yugoslavia and the International Tribunal for Rwanda haveissued a number of indictments charging persons with war crimes based on
sexual violence.
63.
Enslavement has also long been recognized as a war crime, as evidenced
by the Nürnberg Charter and decisions of the Nürnberg Tribunal. The 1945
Nürnberg Charter listed civilian deportations for “slave labour” as a war
crime under article 6 (b), and most slave labour prosecutions under that
article made reference to earlier prohibitions contained in the 1907 Hague
Regulations. 49/
64.
The Geneva Conventions of 1949 may also be read broadly to prohibit
slavery, including sexual slavery, under the grave breaches provisions of theConventions. 50/ Although slavery, like rape, forced prostitution and sexual
abuse, has not been explicitly listed as a grave breach in article 147 of the
Fourth Geneva Convention, based on an interpretation of article 147 by theInternational Committee of the Red Cross, “inhuman treatment” should be readbroadly to include such offences. 51/ In addition, rape, forced prostitution
and other forms of sexual abuse, including slavery for sexual abuse, should
also be read into the prohibitions against “torture”, “inhuman treatment”,“wilfully causing great suffering or serious injury to body or health”, and“the unlawful deportation, transfer or confinement of a civilian” - all ofwhich are explicitly included as grave breaches.
65.
In a prosecution for slavery as a war crime, the elements needed toprove the necessary indicia of ownership or control may be met by the specificE/CN.4/Sub.2/1998/13
page 17

coercive circumstances of the war, particularly where the victim has been
moved against his or her will to a war zone to provide services, otherthan those forced labour services which may be permitted under the Geneva
Conventions or the laws and customs of war. Moreover, as rape is neverpermitted under humanitarian law, coerced “services” of a sexual nature always
constitute violent infractions of humanitarian law.
66.
Recently, the Office of the Prosecutor of the International Criminal
Tribunal for the Former Yugoslavia issued an indictment for slavery against
Bosnian Serb soldiers for detaining nine women for the purposes of forced
labour and sexual assault. 52/ The indictment notes that the women were free
to leave the private home in which they were being detained - they even had a
key to the home - but that the women were not able, in any meaningful sense,
to flee, since they “had nowhere to go as they were surrounded by Serbs, bothsoldiers and civilians”. 53/
2.

War crimes in armed conflicts notof an international character

67.
The majority of the world's contemporary armed conflicts are
non-international, or internal, in character. 54/ Recent examples of sexual
violence committed during internal conflicts include numerous reports ofsexual violence committed following the military coup against the Governmentof President Aristide in Haiti; sexual violence during the 15-year conflictin Peru between government forces and the Shining Path rebels; and sexual
violence in the ongoing hostilities in Algeria, Myanmar, Uganda and southern
Sudan. In Algeria, reports suggest that armed groups have abducted women andgirls for forced, temporary “marriages” in which the captive women and girls
are raped, sexually abused and often mutilated and killed. In Uganda, there
are reports that the Lord's Resistance Army abducts children as soldiersand labourers and forces young girls into sexual slavery. These egregious
examples of sexual slavery and sexual violence illustrate the need forprotection of civilians and combatants during conflicts not of aninternational character.
68.
Since at least 1907, with the adoption of the Martens clause in thepreamble to the Hague Convention No. IV, the international community has
recognized that even in those conflicts or situations that are not covered byhumanitarian treaty provisions, both combatants and civilians “remain under
the protection and the rule of the principles of the law of nations, as they
result from the usages established among civilized peoples, from the laws ofhumanity, and the dictates of the public conscience”. In particular, Common
article 3 of the Geneva Conventions, which constitutes customary internationallaw, sets out those protections that all parties to a conflict must respect,
including all parties to internal conflicts that are not otherwise covered by
the Geneva Conventions. The provisions of Common article 3 are significant,as they regulate the conduct of both State and non-State actors in internal
conflicts. As noted in an analytical report of the Secretary-General on thesubject of minimum humanitarian standards, the importance of the basic
protections contained in both the Martens clause and in Common article 3“should not be underestimated” (E/CN.4/1998/87, paras. 74, 85).

E/CN.4/Sub.2/1998/13
page 18

69.
Article 27 of the Hague Convention No. IV and Common article 3 of the
Geneva Conventions clearly prohibit as a matter of customary international law
acts of sexual violence and rape by State and non-State actors when committed
in internal or international armed conflict. The Appeals Chamber of theInternational Criminal Tribunal for the Former Yugoslavia has recently
confirmed this position, ruling that Common article 3 as well as all of theprovisions of the Hague Convention apply broadly as customary law in all
international as well as internal armed conflicts. 55/ This position is also
supported by an important decision in a case before the International Court ofJustice in which the Court found that the prohibitions contained in Common
article 3 constitute “elementary considerations of humanity” that must be
respected in all armed conflicts. 56/
70.
Despite the broad coverage of Common article 3, there has been someconcern that the application of Common article 3 to internal conflicts may becomplicated by restrictive interpretations of the general reach of the Geneva
Conventions. There is no doubt that in the context of the Geneva Conventions,both Common article 3, which lists protections that must be afforded in armed
conflicts that are “not of an international character”, and Additional
Protocol II, which “develops and supplements” Common article 3, cover acts ofsexual violence and rape committed in internal conflict. 57/ The problem,
however, is that the Geneva Conventions generally fail to identify the levelof conflict or internal strife that may be necessary to trigger theapplication of the provisions of Common article 3. 58/
71.
Some commentaries by the International Committee of the Red Cross andothers have suggested that the threshold of violence that may be needed totrigger the application of Common article 3 is quite substantial. In themost restrictive view, the application of Common article 3 demands an armed
conflict that is substantially similar in character to an international armed
conflict, “with armed forces on either side engaged in hostilities”.59/
The
discussion of Common article 3 that is contained in Additional Protocol II isalso quite restrictive, noting, in particular, that Additional Protocol II,“shall not apply to situations of internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence and other acts of a similar
nature” that do not qualify as armed conflicts (art. 1 (2)). Under theserestrictive views, therefore, the levels of strife that often exist ininternal conflicts might not always be sufficient to trigger the direct
application of Common article 3 or Additional Protocol II in a given conflict.
72.
Despite these concerns, this study understands that the application ofCommon article 3 was always intended to be broad 60/ and that the existing
humanitarian law standards contained in Common article 3 must be applied to
all conflict situations. The international community must not underestimate
the importance of Common article 3 and, in the absence of new and equally
forceful humanitarian standards that may be applied to all levels of internal
conflict, the international community should endorse a broad understanding ofboth the application of Common article 3 to all State and non-State armed
groups in all conflicts and the wide-ranging protections that are actuallyprovided under Common article 3.
73.
In addition to those humanitarian standards that may be applied tointernal armed conflicts, it is also important to recognize that in all cases,

E/CN.4/Sub.2/1998/13
page 19

regardless of the level or even the absence of armed conflict, sexual violence
may also be prosecuted under existing legal norms as slavery, crimes against
humanity, genocide or torture. Moreover, as these crimes may be prosecuted inany available jurisdiction, the absence of an immediately functioning judicial
forum in the State where the crimes are being committed does not in itself
limit the ability of the international community to try the perpetrators ofsuch violations in other functioning national or international forums.
IV.

HOLDING INDIVIDUALS RESPONSIBLE

74.
History teaches that a broad range of actors contribute to thecommission of international crimes during armed conflict and that thecondemnation of responsible parties at all levels is essential to theprevention of international crimes. In order to place responsibility where it
can achieve the policy goals of prevention, deterrence and protection, thepresent report recognizes that there are several overlapping and interlocking
categories of responsibility for egregious international crimes, particularly
those of mass victimization.
75.
The most obvious category of liability for international crimes attaches
to those who actually commit acts of sexual slavery or sexual violence during
armed conflict which constitute slavery, crimes against humanity, genocide,
war crimes or torture. The liability of these perpetrators is determined byproving the elements of the offence, including the necessary mens rea such as
specific intent. Liability can also be found for related forms of theinternational crimes, such as attempt or conspiracy to commit the offence, orinciting, soliciting or aiding and abetting the commission of the offence.
Importantly, the fact that a perpetrator acted under superior orders is not a
defence to the crime, though it may be considered in mitigating
punishment. 61/
76.
Under the legal doctrine of command responsibility, commanders,
superiors and other authorities are liable for crimes perpetrated by theirsubordinates. Any commander or other responsible authority who orders asubordinate to commit acts of sexual slavery or sexual violence, or who
otherwise knew or should have known that such acts were likely to be committed
and failed to take steps to prevent them, may be held fully responsible forthe commission of the international crimes which those acts constitute,
including war crimes, crimes against humanity, slavery, genocide or
torture. 62/ The law of command responsibility relates to acts of rape andsexual violence as it does to all other serious violations of international
criminal law. For example, with respect to violations committed by warring
parties in the former Yugoslavia, a United Nations Commission of Experts thatwas charged with investigating violations of humanitarian law in the region
specifically concluded that:“The practices of 'ethnic cleansing', sexual assault and rape havebeen carried out by some of the parties so systematically thatthey strongly appear to be the product of a policy. The
consistent failure to prevent the commission of such crimes andE/CN.4/Sub.2/1998/13
page 20the consistent failure to prosecute and punish the perpetrators ofthese crimes, clearly evidences the existence of a policy byomission. The consequence of this conclusion is that command
responsibility can be established.” 63/77.
The level of formality or organization of the command hierarchy isirrelevant so long as there is some chain of command for the transmittal oforders and the supervision of subordinates. Further, notions of command
responsibility are not limited to military or paramilitary structures and manyof the persons found to be in command positions are political leaders,
government officials and civilian authorities.
78.
For example, the Office of the Prosecutor of the International Criminal
Tribunal for the Former Yugoslavia indicted the highest-ranking civilian
officer in a municipality in Bosnia and Herzegovina who “knew or had reason toknow” that the Chief of Police in the area was about to force others to commit
acts of sexual assault or had done so and failed to take “necessary andreasonable measures” to prevent such acts or to punish the Chief of Police
after the acts came to his attention. 64/ In that case, the civilian
administrator was charged with responsibility for the acts or the omissions of
the Chief of Police, including crimes against humanity for acts of rape andother forms of sexual assault, including male sexual assault. 65/
79.
Thus, the law of command responsibility fully applies to all those inhigh-level positions with the authority to make decisions, formulate policy
and influence the issuance of directives within the State, region or locale
where international crimes are being committed. Holding commanders, superiors
and other authorities to a “knew or should have known” standard is appropriate
for assessing liability at this level, and where acts of sexual slavery orsexual violence are occurring on a widespread or notorious basis, suchdefendants will be presumed to have knowledge of the acts and of theirinternational prohibition. Of course, a commander who participates in or ispresent during the commission of acts of sexual violence is directly liable asa perpetrator, or may be charged with aiding and abetting the commission of
the crime.
80.
The customary international law of command responsibility is also
reflected in the grave breaches provisions of the Geneva Conventions andarticle 86 (1) of Additional Protocol I which requires all belligerents to“repress grave breaches, and take measures necessary to suppress all otherbreaches, of the Conventions or of this Protocol which result from a failure
to act when under a duty to do so.” The critical importance of thisobligation under the doctrine of command responsibility is underscored in thecontext of crimes of sexual violence, as the historic failure of warring
parties to repress such violations has contributed to continuing cycles of
impunity for acts of sexual slavery and sexual violence in armed conflict.
81.
Another category of legal responsibility applies to those persons who
instigate, incite or solicit the commission of egregious international crimes.
This category of offenders includes those who create the political or social
climate which makes the commission of such crimes possible, such as
propagandists who perpetuate racial, ethnic, religious, gender or otherstereotypes in a manner calculated or likely to bring about violence against

E/CN.4/Sub.2/1998/13
page 21the subjects of such stereotypes. For example, the use of ethnic and genderstereotypes about Tutsi women in newspapers and radio broadcasts is partly
blamed by many for fueling the genocide in Rwanda and for the systematic useof sexual violence against women in that genocide. 66/ Not surprisingly, inmany victim accounts of rape and other sexual violence from Rwanda andfrom the former Yugoslavia, the perpetrators were reported as making
ethnicity-based sexual remarks about the women before, during and after theassaults. 67/
82.
While they are rarely prosecuted, assessing liability of propagandists
as instigators of international crimes such as slavery, crimes against
humanity or genocide is not a novel endeavour. Propaganda and incitement togenocide was the subject of at least two trials at the Nürnberg Tribunal, andin one case a Nazi publicist was convicted of crimes against humanity for
provoking hatred and extermination of the Jews through his anti-Semiticjournal. 68/ A standard of specific intent or reckless disregard would seemappropriate in such situations.
83.
Yet another category of legal responsibility for individuals applies tothose persons who are complicitous in international crimes by carrying out
certain acts or functions in the bureaucracy or political process throughwhich slavery, crimes against humanity, genocide, torture and war crimes are
made a practical possibility. These offenders are often civilians and areoften outside any given chain of command. As their functions or positions may
be quite compartmentalized and their actual knowledge of wrongdoing may be
incomplete, holding them to a standard of reasonable inquiry is appropriate.
For instance, Maurice Papon, a high-level fonctionnaire in the Vichy
Government of France during the Second World War, was recently convicted by aFrench court for complicity in crimes against humanity. 69/ He was sentenced
to 10 years' imprisonment and assessed damages of 4.6 million francs(US$ 748,000) for his part in the Holocaust, specifically in administering thepaperwork of thousands of Jews deported to concentration camps. Papon’spunishment for complicity was not as severe as the punishment would be for an
actual perpetrator; however, his unquestioning performance of questionableacts did in fact contribute to crimes against humanity and he was rightly held
liable for complicity.
84.
Holding persons responsible under the doctrine of complicity is
critical, particularly as international crimes involving sexual slavery andsexual violence during armed conflict are often the result of orchestrated
policy which is usually implemented on a practical level by bureaucrats, civil
servants and other fonctionnaires in the apparatus.
V.

OBLIGATIONS TO SEARCH FOR AND PROSECUTE WAR CRIMINALS

85.
States, including successor Governments, have an obligation to prosecuteslavery, crimes against humanity, genocide, torture and certain war crimes
before domestic courts or, as requested by another State or a duly constituted
international criminal tribunal, to surrender defendants for trial, regardlessof the defendant's civil or military position. As noted in previous sectionsof this report, these crimes all entail universal jurisdiction andperpetrators may properly be tried before any competent national orinternational tribunal.

E/CN.4/Sub.2/1998/13
page 2286.
To the extent that the violations described in this report may
constitute grave breaches of the Geneva Conventions, a Contracting Party to
the Conventions is under an additional obligation, according to article 146 of
the Fourth Geneva Convention, to “search for persons alleged to havecommitted, or to have ordered to be committed, ... grave breaches” and to“bring such persons, regardless of their nationality, before its own courts.”
This obligation may also be applied to States that are not parties to the
Geneva Conventions to the extent that it now reflects customary internationallaw applicable at least to all international armed conflicts. The
apprehension and prosecution of criminals is one aspect of the generalobligation to bring perpetrators of international crimes to justice, and otheraspects may include compensation of victims and other forms of redress, as
discussed in section VI below. By fulfilling the obligation to bring
perpetrators of international crimes to justice, States take an important andnecessary step towards eradicating sexual slavery and sexual violence during
armed conflict.
87.
It is well established that there are no statute of limitation barriers
to prosecutions for serious crimes under international law. The Special
Rapporteur of the Sub-Commission on impunity of perpetrators of violations ofcivil and political rights, Mr. Louis Joinet, noted in his final report to the
Sub-Commission that “[p]rescription is without effect in the case of serious
crimes under international law ... [and] it cannot run in respect of any
violation while no effective remedy is available” (E/CN.4/Sub.2/1997/20/Rev.1,
para. 31). This modern position is a natural extension of the Nürnberg
Tribunal precedent and is reaffirmed in international treaties addressing the
subject and prohibiting the application of statutory limitations to certain
war crimes and crimes against humanity, such as the Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity (1968) and the European Convention on the Non-Applicability of
Statutory Limitation to Crimes against Humanity and War Crimes (1974). A
number of domestic courts have in fact continued to convict Nazi war criminals
for international crimes committed nearly 50 years ago during the Second World
War despite defence arguments based on statute of limitations concerns.70/
Similar reasoning prevents statute of limitations barriers to claims forcompensation for gross violations, as discussed below.
VI.

THE RIGHT TO AN EFFECTIVE REMEDY AND THE DUTY TO COMPENSATE88.
The Special Rapporteur of the Sub-Commission on the right to reparationfor victims of gross violations of human rights and humanitarian law,
Mr. Theo van Boven, noted in his revised set of basic principles andguidelines that all victims of serious violations of international law have aright to fair and adequate reparations, which “shall render justice byremoving or redressing the consequences of the wrongful acts and by preventing
and deterring violations” (E/CN.4/Sub.2/1996/17, para. 7). Reparations, as
defined in international law and as used throughout the present report, refers
to all measures expected to be taken by a State which has violated
international law, including payment of monetary compensation to victims,
punishment of wrongdoers, apology or atonement, assurances of non-repetition,and other forms of satisfaction proportionate to the gravity of theviolations. 71/

E/CN.4/Sub.2/1998/13
page 23

89.
The right to an effective remedy is clearly essential in overcoming
impunity and non-accountability for sexual slavery, rape and other acts ofsexual violence in armed conflict, and the rights of victims of theseatrocities must be vindicated and redressed. The failure to provide any forum
or mechanisms for the redress of rights violations would clearly constitute afurther violation of international norms and obligations, as would any
discrimination against women in exercising their rights to redress. For
instance, it is contrary to the principles of international law for municipal
law, including customary law, to provide that only male relatives can claim
and receive compensation on behalf of women victims of rights violations.
Women must be legally entitled, on an equal basis with men, to claim andreceive compensation on their own behalf.
90.
Similarly, Mr. van Boven concluded that statutes of limitations for theconsideration of compensation claims shall not run during periods during which
no effective remedies exist (E/CN.4/Sub.2/1996/17, para. 9). Mr. van Boven
also noted that under the current state of international law, civil claims
relating to reparations for gross violations of human rights and humanitarianlaw shall not be subject to statutes of limitations in any event (ibid.). Theinternationally accepted principle that there are no statute of limitations
barriers to the prosecution and compensation of serious violations of humanrights and humanitarian law is significant given the concern that women who
have suffered serious violations, including sexual slavery, often faceparticularly grave social and legal obstacles to coming forward in a timely
manner. Such obstacles are significantly exacerbated when Governments or
warring entities conceal the true nature or the scope of the violations.
VII.
A.

PROSECUTIONS AT THE NATIONAL LEVEL

Significance of national prosecutions

91.
In addressing the issue of impunity, it is important to note that
wherever national courts have established adequate procedural mechanisms tosafeguard the rights of both the victims and the defendants, national
prosecutions for human rights and humanitarian law violations may often be
preferable to prosecutions before international tribunals. In 1973, theGeneral Assembly adopted resolution 3074 (XXVIII) entitled, “Principles ofinternational cooperation in the detention, arrest, extradition and punishmentof persons guilty of war crimes and crimes against humanity”, in which it
noted in particular that “[e]very State has the right to try its own nationals
for war crimes or crimes against humanity.” This principle also applies tocases of sexual violence, although the international community must recognizethat crimes of a violent sexual nature require specific procedural andevidentiary safeguards to ensure that national prosecutions adequately respondto the violations.
92.
There are clearly several overlapping concerns that must be consideredwhen deciding whether to charge acts of sexual slavery and sexual violence
during armed conflict in an international rather than a national tribunal. In
general, national prosecutions in the jurisdiction in which the crime wascommitted for acts of sexual slavery and sexual violence during armed
conflict, if conducted in gender-sensitive ways, are often more likely tosatisfy the fundamental rights of the victims to know the truth of what

E/CN.4/Sub.2/1998/13
page 24

occurred and should therefore be preferred in most cases over international
prosecutions (E/CN.4/Sub.2/1997/20/Rev.1, para. 16). Nonetheless, wheneverpossible, these cases should be tried in domestic courts as international
crimes rather than municipal crimes, with alternative charges under municipal
law in case the necessary elements of the international crime cannot beestablished.
93.
In some cases the egregious nature or massive scale of the violations
may suggest that only a prosecution by an international tribunal would
appropriately reflect the injury that the crimes inflicted on the global
community. This is particularly true with respect to proceedings against
senior political or military leaders who stand accused of having committed or
having ordered the commission of crimes on a massive scale in violation ofjus cogens norms, including acts of sexual slavery and sexual violence. As
matters of universal concern that may be tried properly in any forum, massive
criminal violations of peremptory norms of customary international law areproperly a focus of the international community as a whole and should, inthese most extreme cases, be addressed in international criminal proceedings.
94.
In cases involving claims of sexual slavery or sexual violence, local
prosecutions may be more effective in preventing future violations, while
facilitating the return of victims to their pre-war communities by removingsome of the stigma that may often be attached, however improperly, to victimsof sexual violence. However, because of culturally maintained genderstereotypes, it is not self-evident that all survivors of such violations will
be willing or able to come forward, either because they fear exposing
themselves to further stigma or because they fear retaliation. Thus, local
tribunals in post-conflict proceedings must be evaluated based on theirability to ensure the rights of both victims and defendants to obtain justicebefore an independent and impartial tribunal.
B.

Common failings of municipal law and procedure95.
A crucial concern in evaluating the competence of national judicial
systems to try international crimes is the extent to which the municipal legal
system in question adequately protects as a matter of general concern therights of women to present and argue their legal claims on an equal basis withmen in a court of law. In national prosecutions, crimes of sexual slavery andsexual violence committed during armed conflict should generally be tried asinternational crimes rather than municipal crimes, with the application,
therefore, of international procedural rules involving such issues as theadmissibility of evidence. Nonetheless, to the extent that some municipal
rules of criminal procedure or evidence may still be applied, the existence ofgender-based stereotypes and biases in municipal laws or procedures must be
taken into account when assessing the general competence of domestic courts to
adjudicate violations of human rights and humanitarian law that are directedagainst women. For example, in some legal systems the crime of rape is notadequately defined as a crime of violence against the person. In other legal
systems, evidentiary rules diminish the legal weight that is afforded to thetestimony of a woman in a court of law, creating a legal barrier that would
necessarily impede the adequate prosecution of crimes committed against women.
Also, the general approach that a legal system takes to crimes of sexual
violence, including rape and sexual slavery, may be an additional and equally

E/CN.4/Sub.2/1998/13
page 25

important factor to consider in evaluating the overall utility of nationalrather than international prosecutions for acts of rape and sexual slavery
committed during armed conflict. For instance, some legal systems emphasize
the immoral status of the rape survivors rather than the violent nature of theoffence committed by the perpetrator.
96.
A general survey of municipal legal systems reveals the following
examples of gender-based discrimination codified in criminal laws and justicesystems around the world: rape and other forms of sexual assaults that are
defined as crimes against the community and not against the individual victim,
even though non-sexual assaults are defined as crimes against the individual
victim; rape being defined as acts committed by a man against a woman (not hiswife), even though men are also victims of sexual violence; procedural laws
requiring women to take independent action to initiate prosecutions of rape by
the prosecutor’s office; evidentiary laws which accord less weight to evidence
if presented by a woman; evidentiary laws in rape and sexual assault cases
which require women to provide corroborating testimony from men; substantive
laws which provide that a married woman who is unsuccessful in proving that
she was raped can then be charged with adultery; penalties for sexual violence
which allow a man convicted of rape to avoid punishment if he marries thevictim; laws which prevent women from serving as judges or as fact-finders;laws which restrict women’s access to abortions, contraception or reproductive
information; and the absence of adequate, gender-specific witness protection
programmes - leaving survivors of sexual and gender violence vulnerable toretaliatory attacks and at the mercy of their male relatives for protection the very relatives who often regard the survivors as “dishonoured women”.
97.
Gender bias and discrimination are also embodied in many family andpersonal status laws worldwide. For example, in some municipal legal systems,
women are considered under the legal guardianship of male relatives anddenied the legal capacity to contract for labour or services, to hold or
dispose of property, or to claim or collect damages for injuries on their own
behalf. The focus of humanitarian law on notions of “family honour” serves as
a historic link to these contemporary denials of women’s individual personhood
before the law.
98.
In light of these common failings of municipal law and procedure, thepresent report calls for a broad interpretation of the draft statute of theInternational Criminal Court (A/CONF.183/2/Add.1) which would requireinternational prosecutions of those crimes within the Court’s jurisdiction
whenever a State which has jurisdiction over the crimes is unwilling or unable
to carry out an investigation or prosecution, or whenever municipal laws orprocedures are unavailable or ineffective in securing the rights of thevictims to justice and the rights of the defendant to a fair trial.
99.
One important factor to consider in evaluating the general competence ofa municipal judicial system to adjudicate international crimes, including
those involving sexual slavery or sexual violence, is the potential
application of the death sentence. As the international community has
committed itself to the progressive elimination of death sentences and otherbarbaric punishments, it would seem contrary to international principles andto the goals of promoting respect for human life and dignity to allow

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page 26

prosecutions of international crimes in jurisdictions which mandate the death
sentence, unless the potential application of the death penalty is waived.
100. Nonetheless, despite these varied and interrelated concerns with respect
to municipal legal proceedings, when appropriate, national prosecutions
generally remain favoured over international prosecutions for most crimes ofsexual slavery or sexual violence as a more effective means of investigatingthese crimes and preventing future violations. Although the international
community now looks forward with great expectation to the imminent creation ofa permanent International Criminal Court, it remains imperative that domestic
courts continue to prosecute international crimes committed in armed conflicts
effectively at the national level, as international proceedings, even before
an International Criminal Court, will likely be available only to address asmall fraction of the violations that are committed every year.
VIII.

RECOMMENDATIONS

101. Ending the cycle of impunity which currently exists for acts ofsexual violence and sexual slavery during armed conflict will requirepolitical will as well as concerted action by the international community, theUnited Nations, Governments and non-governmental actors. Developing theeffectiveness and availability of the existing legal framework is a criticalcomponent of any such action. At least the following practical steps shouldbe pursued immediately.
102. Legislation at the national level. States should enact special
legislation incorporating international criminal law into their municipal
legal systems. Domestic law codifications of international criminal law
should specifically criminalize slavery and acts of sexual violence, including
rape, as grave breaches of the Geneva Conventions, war crimes, torture andconstituent acts of crimes against humanity and genocide. Military
regulations, codes of conduct, and training materials for the uniformed andarmed services must explicitly address the prohibition of sexual violence andsexual slavery during armed conflict. States should search for and bring tojustice all perpetrators of grave breaches of the Geneva Conventions, pursuant
to article 146 of the Fourth Geneva Convention. States should, for example,
follow the examples of Belgium and Canada and enact legislation providing
universal jurisdiction for violations of jus cogens norms and otherinternational crimes including sexual slavery and sexual and gender violence
committed by State and non-State actors, including armed groups not under
State authority. The Sub-Commission, in consultation with other relevant
United Nations bodies, should facilitate public reporting by the
Secretary-General on steps that have been taken to incorporate humanitarianlaw into national legal systems and the extent to which national laws provide
jurisdiction to prosecute persons who are within the territory or jurisdictionof the State and are accused of having committed grave breaches of the Geneva
Conventions, crimes against humanity, slavery, genocide or torture in othercountries. The Sub-Commission may wish to request the author of thepresent report to facilitate the convening of an expert meeting comprisedof representatives of Attorneys General, Ministries of Justice, national
prosecutors from various legal systems, the Office of the Prosecutor for
the International Criminal Tribunal for the Former Yugoslavia and forthe International Tribunal for Rwanda, the Office of the United Nations

E/CN.4/Sub.2/1998/13
page 27

High Commissioner for Human Rights and other relevant United Nations
programmes, agencies and experts such as the Commission on Crime
Prevention and Criminal Justice or the Special Rapporteur of the Commission
on violence against women, and other relevant international, governmental
and non-governmental organizations to prepare and disseminate guidelines
for the effective prosecution of international crimes of sexual violence inproceedings at the national level.
103. Removal of gender bias in municipal law and procedure. States mustensure that their legal systems at all levels conform to internationallyaccepted norms and are capable of adjudicating international crimes andadministering justice without gender bias. Municipal courts and formal andcustomary laws and practices must not discriminate against women in
substantive legal definitions or in matters of evidence or procedure. Statesshould review and revise their domestic law and practices to ensure that they
promote equal access to justice for women and men and that all levels andbranches of their legal systems, including, where relevant, military or
religious courts, provide effective remedies and forms of redress forviolations of international law, including prosecution of perpetrators andcompensation of victims. In furtherance of efforts begun by the various
agencies and entities of the United Nations, notably the Special Rapporteur onviolence against women, and as reaffirmed in the Beijing Platform for Action,
the Sub-Commission, along with other relevant bodies and programmes of theUnited Nations, should facilitate the publication, on a regular basis, of
information on the substantive, evidentiary and procedural barriers at alllevels in municipal legal systems to prosecuting violence against women,
including sexual violence, highlighting the steps taken to remove theseobstacles in conformity with international human rights standards.
104. Adequate protection for victims and witnesses. In prosecutions ofinternational crimes at the international or national levels, including thosecrimes involving sexual violence, it is important to protect victims andwitnesses from intimidation, retaliation and reprisals at all stages of theproceedings and thereafter. This is particularly the case when the crimes
being prosecuted are international crimes involving allegations of sexual
violence and the assailants remain at large in the community. Such protection
may require witness relocation programmes or confidentiality of witnesses'
identities. Appropriate resources, structures and personnel must be
identified for witness protection programmes and support services, including
female translators, for victims and witnesses in prosecutions at the national
and international level and at all stages of the proceedings (including
necessary periods thereafter).
105. Appropriate support services for victims. In addition to having theircases investigated and prosecuted, victims of sexual violence must be afforded
appropriate support services, including psycho-social counselling, legal aid,
emergency medical care and reproductive health services responsive to thedevastating effects of sexual violence, including unwanted pregnancies,
sexually transmitted disease and mutilation. To the extent that rape
continues to be conceived of as an honour violation under various provisionsof humanitarian law, it should be seen as a violation of the inherent honourand dignity of all persons. The hazards involved in linking rape togender-biased concepts of “women’s honour” include the risk of marginalizing

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the nature of the injury or inadvertently accepting the imputation of shame tothe survivor, thereby reducing adequate legal redress and compensation andotherwise complicating all aspects of physical and psychological recovery.
Survivors of sexual violence often face ostracism and discrimination fromtheir families and communities, members of whom may consider the victims to be“tarnished” or to have “dishonoured” them in some way, which hinder steps
toward reintegration. These destructive attitudes concerning the survivors of
sexual violence must be actively dispelled through campaigns undertaken byauthorities in conjunction with local women’s groups in conformity withinternational obligations to end demeaning stereotypes regarding women andmen. States should review and revise where necessary their asylum and refugee
determination procedures to ensure their capacity to recognize as refugees
those persons who seek refugee status or asylum based upon a fear of
persecution through sexual or gender violence in armed conflict, and toprovide access to trained interpreters and legal professionals to facilitatesuch claims.
106. The proposed permanent International Criminal Court. The United Nations
High Commissioner for Human Rights should facilitate an ongoing dialogue
between persons representing the various entities which will be charged with
implementing the statute of the International Criminal Court and the relevant
experts of the Commission on Human Rights and the Sub-Commission and the
Office of the Prosecutor for the International Criminal Tribunal for theFormer Yugoslavia and for the International Tribunal for Rwanda. To further
this dialogue, the High Commissioner should convene a meeting to develop
principles and suggest what resources would be necessary to ensure that theinvestigations and prosecutions of the International Criminal Court proceedwith due regard to the need to integrate a gender perspective fully into its
content and the recruitment of its personnel. Specific strategies include
gender training for personnel at all levels as well as guidelines forprosecution of sexual violence, including effective documentation techniques
and work with local non-governmental organizations and women’s groups.
107. Documentation with a view to eventual prosecution. The Office of theUnited Nations High Commissioner for Human Rights, operating through field
missions and other services, should take the lead in documenting or
facilitating the documentation of sexual violence in conflict situations.
This will require specific training of United Nations staff and a commitment
on the part of the High Commissioner herself to give priority to such
documentation efforts. Steps should be taken to ensure the presence of femaletranslators in all monitoring missions undertaken or coordinated by the Officeof the High Commissioner, and mechanisms should be implemented to protect theidentity of witnesses and victims who do come forward. Any such documentation
efforts should be conducted with a view towards potential prosecution of
perpetrators and mechanisms should be explored to facilitate such prosecutionsin international tribunals. In the documentation of sexual violence committed
during armed conflict, a coordinated effort should be made by investigators at
the international and national levels, governmental and non-governmentalorganizations, humanitarian and relief agencies, health care providers,journalists and others to reduce the trauma of victims and witnesses inrecounting their stories. The methods of documenting and investigating crimes

E/CN.4/Sub.2/1998/13
page 29of sexual violence should include collecting information from alternative,
reliable sources such as local women’s groups, human rights monitors andhealth care providers.
108. Action at the cessation of hostilities. At the close of hostilities, it
is increasingly the practice for concerned parties to include “human rights
chapters” in peace treaties obliging the parties to ratify and observe
international human rights instruments and principles. The prosecution of
perpetrators and compensation of victims of international crimes committed
during armed conflict are generally not contemplated in the peace negotiations
and agreements. In fact, amnesty is often granted to those who have committed
crimes such as grave breaches of the Geneva Conventions and other war crimes,
crimes against humanity, slavery, genocide and torture. Following an armed
conflict or other hostilities or circumstances resulting in the transfer ofState power, States should explicitly include in peace treaties provisions
designed to break the cycle of impunity and to ensure the effective
investigation and redress of sexual slavery and acts of sexual violence,
including rape, committed during the armed conflict. In addition, peace
treaties must not seek to extinguish the rights of victims of human rights
violations with respect to claims of compensation and other forms of legal
redress unless appropriate administrative schemes for compensation andprosecution are incorporated into the substantive peace agreement. Theinternational community, including the United Nations, must give maximum
support to rebuilding effective, accessible and non-discriminatory municipal
legal systems following the cessation of hostilities and ensure adequate
prosecutions of international crimes committed during the conflict,particularly those involving sexual violence.
109. The need for an effective, gender-sensitive response. Whileinternational human rights and humanitarian law are largely applicable to allperpetrators of sexual violence and slavery, male or female, the nature andconsequences of these crimes as they relate specifically to gender must be
incorporated into all legal and extralegal responses, including prevention,
investigation, prosecutions, compensation, and the training of persons taking
part in armed conflicts. This gender integration is to ensure that no sexual
violence is committed with impunity. Clearly, women are often at great riskof sexual violence. This risk is further exacerbated by gender discrimination
found within all legal systems and within societies in general, although tovarying degrees. This discrimination is particularly likely when the fact of
being female is coupled with minority status in terms of ethnicity, race orreligion. At the same time, in the context of armed conflict, it is crucial
not to overlook the fact that victims of sexual violence most likely will havealso suffered violence of a non-sexual nature. Women who have been raped, forinstance, should not be characterized solely as “the rape victims” as thisignores the totality of the violations they may have endured. By
incorporating an understanding of gender into the legal framework for
responding to systematic rape and sexual slavery, the full range of theobligations and legal accountability of all parties to a conflict may be
carefully articulated and concrete steps may be outlined to ensure adequate
prevention, investigation and criminal and civil redress, including
compensation of victims.

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page 30

IX.

CONCLUSIONS

110. As Ms. Machel noted in her final report, “While abuses such as murder
and torture have long been denounced as war crimes, rape has been downplayed
as an unfortunate but inevitable side effect of war” (A/51/306, para. 91).
However, a new attitude is evolving with respect to the prosecution of sexual
violence committed during armed conflict as serious international crimes. Theinternational community has increased its efforts to end the cycle of impunity
for these crimes by ensuring, for both victims and perpetrators, that justiceis done. The International Criminal Tribunal for the Former Yugoslavia andthe International Tribunal for Rwanda, as well as the proposed permanentInternational Criminal Court, are welcome advances in this campaign forjustice, and it is hoped that these tribunals will endeavour to implement thebest practices possible in this regard.
111. The international legal framework of humanitarian law, human rights law
and criminal law which currently exists to prosecute crimes of sexual violence
committed during armed conflict, although not always sufficiently explicit,
clearly prohibits and criminalizes sexual violence and sexual slavery andprovides universal jurisdiction in most cases. International law must betterreflect the experience of women and the true nature of the harms done to them,
particularly during armed conflict situations, and the further development of
the legal framework through consistent, gender-responsive practice is a
critical goal. Nevertheless, it is the lack of political will that poses thegreatest obstacle to the effective prosecution and redress of sexual slavery
and sexual violence during armed conflict.
112. When the necessary elements exist to establish that sexual violence
constitutes an international crime such as slavery, crimes against humanity,
genocide, torture or war crimes, it must be charged, prosecuted and redressed
as such. Concrete steps must be taken immediately, including in thosecountries currently experiencing internal armed conflict or violence, toensure that (a) sexual violence and sexual slavery are identified anddocumented; (b) legal frameworks are applied to ensure that the perpetratorsof such abuses are brought to justice; and (c) victims of such abuses receive
full redress under both criminal and civil laws, including compensation whereappropriate. The international crime of slavery, including sexual slavery, isa particularly important and useful basis for addressing egregious acts ofviolence committed against women in armed conflict, given that its prohibition
is a jus cogens norm which gives rise to pure universal jurisdiction.
113. Individual perpetrators of slavery, crimes against humanity, genocide,torture and war crimes - whether State or non-State actors - must be held
responsible for their crimes at the international or national level, dependingon the circumstances of the case and on the capacity and availability offorums to adjudicate the case fairly and dispense justice adequately. A
strict application of the international legal standards for command
responsibility, which apply to all authorities within a given chain ofcommand, may prevent future sexual or gender violence in conflict situations
and will serve the goals of protection, enforcement and deterrence. In manycases, it may be more efficient to focus resources on the prosecution ofcommanding officers at the international level for such crimes as crimes
against humanity or genocide, or for the failure to take steps to prevent

E/CN.4/Sub.2/1998/13
page 31sexual violence against and enslavement of girls and women, while prosecuting
those responsible for carrying out the specific offences for appropriate
international crimes in municipal proceedings. In addition, those who incite
or solicit the commission of international crimes or contribute to theircommission through acts in complicity, must also be held liable for theiractions or inaction, as the case may be.
114. To the discredit of us all, the international community waited too long
to become involved in the situations in the former Yugoslavia and Rwanda
despite the reports of massive violations of life and liberty of men andwomen, including rape and other forms of sexual violence being used as war
tactics. Widespread, frequent and unremedied acts of rape and other forms ofsexual violence are important indicators of a nascent conflict and such alerts
must be taken as seriously as reports of mass killings and forcible
expulsions. The international community must respond quickly to these early
warnings of armed conflict situations and humanitarian, diplomatic andpreventative intervention must include efforts to address such sexual or
gender-based violence.
115. Armed conflict exacerbates the discrimination and violence directed at
women everywhere, every day. To end the cycle of violence, the equal rights
of women to participate in the economic, social, political and cultural lifeof their societies must be protected and promoted. Without the full equality
and participation of women, any steps taken to prevent systematic rape orsexual slavery during armed conflict or to rebuild societies recovering fromwar will ultimately fail.

Notes
1/
The Special Rapporteur would like to thank the following
individuals for their assistance in producing this report: Stephen Bowen,
Mark Bromley, Alice M. Miller and Alison N. Stewart. In addition, theSpecial Rapporteur would also like to thank the following individuals who
provided expert guidance during the course of this study: Kelly Askin,
M. Cherif Bassiouni, Diane Orentlicher, Patricia Viseur Sellers, andDavid Weissbrodt.
2/
For a discussion, see Hilary Charlesworth, Christine Chinkin and
Shelley Wright, “Feminist approaches to international law”, American Journalof International Law, vol. 85, 1991.
3/
Madeline Morris, “By force of arms:
culture”, Duke Law Journal, vol. 45, 1996.

rape, war, and military

4/“The term 'gender' refers to the socially constructed roles ofwomen and men in public and private life. Gender is distinct from 'sex',
which is biologically determined.” Donna Sullivan, Integration of Women’s
Human Rights into the Work of the Special Rapporteurs (New York: UNIFEM,
1996).

E/CN.4/Sub.2/1998/13
page 32

5/
See Beijing Declaration and Platform for Action (A/CONF.177/20),
paras. 131-149; Radhika Coomaraswamy, Report of the Special Rapporteur onviolence against women, its causes and consequences (E/CN.4/1998/54),
paras. 8-18.
M. Cherif Bassiouni, Sexual Violence: An Invisible Weapon of War
6/in the Former Yugoslavia, Occasional Paper No. 1, International Human Rights
Law Institute, DePaul University College of Law (1996), p. 3.
7/
Human Rights Watch, Shattered Lives: Sexual Violence during the
Rwandan Genocide and its Aftermath, New York, (1996) p. 62.
8/
See International Criminal Tribunal for the Former Yugoslavia(ICTFY), Prosecutor v. Tadic, Case IT-94-1-T (Trial Chamber Judgmentof 7 May 1997).
9/
ICTFY, Indictment of Miljkovic and Others, Case IT-95-9-I(21 July 1995) para. 31.
10/
Rape and Sexual Assault: A Legal Study. Final Report of theUnited Nations Commission of Experts Established Pursuant to Security Council
Resolution 780 (1992) (S/1994/674/Add.2 (Vol. I), annex II), para. 2.
Ibid., note 4 (stating that “[v]iolent crimes of a homosexual
11/
nature are not explicitly mentioned in international humanitarian law... Thatinternational humanitarian law, insofar as it provides protection against rapeand other sexual assaults, is applicable to men as well as women is beyond any
doubt as the international human right not to be discriminated against (inthis case on the basis of sex) does not allow derogation.”).
12/
ICTFY, Rules of procedure and evidence, (as amended on
25 July 1997), rule 96 (Evidence in cases of Sexual Assault); International
Tribunal for Rwanda, Rules of procedure and evidence, entered into force
29 June 1995.
13/

Ibid.

14/
M. Cherif Bassiouni, “Enslavement as an International Crime”,
New York University Journal of International Law and Politics vol. 23 (1991)
p. 458.
15/
For example, see ICTFY, Indictment of Gagovic and Others,case IT-96-23-I (26 June 1996) [hereinafter Foca Indictment].
16/
See for example, Betsy Apple, School for Rape:
Military and Sexual Violence (1998), p. 49.

The Burmese

17/
Coomaraswamy, (E/CN.4/1998/54, para. 42). It is clear that many
victims of sexual slavery and sexual violence during armed conflict arechildren. Ms. Graça Machel, the expert appointed by the Secretary-General toundertake a study on the impact of armed conflict on children, stated in her
final report (A/51/306 of 26 August 1996, para. 45):

E/CN.4/Sub.2/1998/13
page 33“In Guatemala, rebel groups use girls to prepare food, attend to
the wounded and wash clothes. Girls may also be forced to provide
sexual services. In Uganda, girls who are abducted by the Lord’s
Resistance Army are 'married off' to rebel leaders. If the mandies, the girl is put aside for ritual cleansing and then married
off to another rebel.”
18/
Machel, Ibid., para. 91. “While abuses such as murder and torture
have long been denounced as war crimes, rape has been downplayed as an
unfortunate but inevitable side effect of war.”
19/
M. Cherif Bassiouni, International Crimes: Jus Cogens andObligations Erga Omnes, in Bassiouni and Madeline H. Morris, (eds.),
Accountability for International Crimes and Serious Violations of Fundamental
Human Rights, 1996, p. 68.
20/

Ibid., pp. 65-66.

21/

Ibid.

See ICTFY, Tadic case, sect. VI.D.2.ii.a. A Trial Chamber of the22/
ICTFY noted that “it is now well established that the requirement that theacts be directed against a civilian <population' can be fulfilled if the acts
occur on either a widespread basis or in a systematic manner. Either one ofthese is sufficient to exclude isolated or random acts”.
23/
Article 6 (c) of the Charter of the International Military
Tribunal, Nürnberg (1945) defines crimes against humanity as “murder,
extermination, enslavement, deportation, and other inhumane acts committed
against any civilian population before or during the war, or persecutions onpolitical, racial, or religious grounds in execution of or in connection withany crime within the jurisdiction of the Tribunal, whether or not in violationof the domestic law of the country where perpetrated”. See also the Final
Report of the United Nations Commission of Experts Established Pursuant toSecurity Council Resolution 780 (1994) (S/1994/674), para. 83.
24/
ICTFY, Tadic case, Appeals Chamber Decision on Jurisdiction of
2 October 1995, para. 141 (stating that it was a settled rule of customaryinternational law that crimes against humanity do not require a connection tointernational armed conflict).
25/
Theodor Meron, “Rape as a Crime under international humanitarianlaw”, American Journal of International Law, vol. 87, 1993, p. 428.
26/
M. Cherif Bassiouni, Crimes against Humanity in International
Criminal Law, (Dordrecht, Boston: M. Nijhoff, 1992) p. 251. The author
states:“[I]t is inconceivable that any targeted group, no matter what its
affinity may be, should be excluded [from grounds of protection
under crimes against humanity]. The element of discrimination
evidences the collective nature of the crime and its scope shouldhave no limits and no quantitative or numerical standards for theE/CN.4/Sub.2/1998/13
page 34

persons to be included in the discriminated group.”
27/
para. 107.

Ibid.

See also Commission of Experts Report (S/1994/674),

Charter of the International Military Tribunal, Nürnberg,
28/
art. 6 (c); Charter of the International Military Tribunal for the Far East,
art. 5 (c); Allied Control Council Law No. 10, Punishment of Persons Guilty of
War Crimes against Peace and against Humanity, art. 1 (c).
29/Security Council resolution 827 (1993), annex.

30/

Security Council resolution 955 (1994), annex.

31/
Foca Indictment, supra note 15, Counts 56, 57, 61 and 62,
paras. 12.2, 12.5.
32/
Barcelona Traction, Light and Power Co., Ltd. (Belgium v. Spain),
Judgement of 5 February 1970: I.C.J. Reports 1970, p. 32.
John P. Humphrey, The International Law of Human Rights in the33/
Middle Twentieth Century, reprinted in Richard B. Lillich, International Human
Rights: Problems of Law, Policy, and Practice (2nd ed.) (Boston, Toronto:
Little Brown & Co., 1991), p. 1.
“By 1885, it was possible to affirm, in the General Act of the Berlin
Conference on Central Africa, that <trading in slaves is forbidden in
conformity with the principles of international law'. And in 1889, theBrussels Conference not only condemned slavery and the slave trade but
agreed on measures for their suppression, including the granting ofreciprocal rights of search, and the capture and trial of slave ships.
This work was continued by both the League of Nations and theUnited Nations.”
34/
Advisory Opinion of the International Court of Justice on
Reservations to the Convention on the Prevention and Punishment of the Crimeof Genocide, I.C.J. Reports 1951, p. 15.
35/

Commission of Experts Report (S/1994/674), para. 313.

36/
Yoram Dinstein, “International Criminal Law”, Israel Yearbook on
Human Rights, vol. 5, 1975, reprinted in Henry J. Steiner and Philip Alston,International Human Rights in Context, Law, Politics, Morals (Oxford:
Clarendon Press, 1996), pp. 1025, 1028 (noting that “the murder of a single
individual may be categorized as genocide if it constitutes a part of a seriesof acts designed to attain the destruction of the group to which the victim
belonged”).
37/
Report of the Special Rapporteur on the question of torture to
the Commission on Human Rights at its forty-second session (E/CN.4/1985/15,
para. 119); International Human Rights Law Group, Token Gestures: Women's
Human Rights and UN Reporting, 1993, pp. 6-11.

E/CN.4/Sub.2/1998/13
page 35

38/
Committee on the Elimination of Discrimination against Women,
general recommendation No. 19 (eleventh session, 1992), para. 6.
39/
Military and Paramilitary Activities in and against Nicaragua(Nicaragua v. United States), Judgment of 27 June 1986, I.C.J. Reports 1986,
p. 114 (finding that the rules articulated in article 3 common to the Geneva
Conventions, as declarative of customary international law, represent
elementary considerations of humanity).
40/
Report of the International Law Commission on the work of its
thirty-second session, Official Records of the General Assembly, Thirty-fifth
Session, Suplement No. 10 (A/32/10) (1980).
41/
Article 49 of the (First) Geneva Convention for the Ameliorationof the Condition of the Wounded and Sick in Armed Forces in the Field;
article 146 of the (Fourth) Geneva Convention Relative to the Protection of
Civilian Persons in Time of War.
42/
In general, the grave breaches provisions of the Geneva Conventionof 1949 are intended to benefit “protected persons” which article 4 of the
Fourth Geneva Convention defines as “those who, at a given moment and in any
manner whatsoever, find themselves, in case of a conflict or occupation, inthe hands of a Party to the conflict or Occupying Power of which they are notnationals”. The grave breaches provisions are also intended to apply during
international armed conflicts involving one or more Contracting Parties to theConventions. Article 3 common to the Conventions and Protocol II additional
to the Conventions offer more limited protections in conflicts of a
non-international character.
The Appeals Chamber of the ICTFY has ruled (in the Tadic case) that evenas customary international law, the grave breaches provisions of the Geneva
Conventions apply only in the context of international armed conflicts.
However, commentators have criticized this decision as being under-inclusive.
Theodor Meron, “The continuing role of custom in the formation ofinternational humanitarian law”, American Journal of International Law,
vol. 90, p. 243.
43/
A single act of rape is sufficient to constitute a war crime.
Commission of Experts Report (S/1994/674), para. 105 and Rape and Sexual
Assault (S/1994/674/Add.2) (vol. I), annex II, para. 16.
44/
International Committee of the Red Cross, Aide-Mémoire,
3 December 1992. See also Meron, supra note 25, p. 26.
45/
Ibid. See also Amnesty International, Bosnia and Herzegovina:
Rape and Sexual Abuses by Armed Forces, 1993.
46/
The Regulations annexed to the Hague Convention No. IV of 1907
should be viewed as having attained the status of customary international law
by at least 1939. Judgement of the Nürnberg Tribunal, in American Journal ofInternational Law, vol. 41, 1947.
47/

Ibid.

E/CN.4/Sub.2/1998/13
page 36

48/
U. Dolgopol and S. Paranjape, Comfort Women: An UnfinishedOrdeal, International Commission of Jurists, 1993, pp. 135-36.
49/
Most Nürnberg Tribunal slave labour cases alleged violations ofarticle 46 of the Hague Convention Regulations concerning family honour,
coupled with article 52 concerning the types of forced labour that may berequired of civilian populations. See also Bassiouni, supra note 14.
50/
Significantly, articles 27 and 147 of the Fourth Geneva Convention
directly address certain aspects of slavery or slavery-like practices.
Slavery and related crimes are addressed in articles 49-57 of the (Third)
Geneva Convention Relative to the Treatment of Prisoners of War, which
specifically regulate the labour of prisoners of war, particularly labour
which is of an unhealthy, dangerous or humiliating nature. In addition,
article 130 of the Third Geneva Convention considers “wilful killing, torture
or inhuman treatment, including biological experiments, [and] wilfully causing
great suffering or serious injury to body or health” to be grave breaches.
When read in conjunction with article 130, the prohibitions in articles 49-57
of the Third Geneva Convention include various forms of slavery as grave
breaches. Bassiouni, supra note 14, pp. 510-512.
Jean S. Pictet, et al. (eds.), Commentary on the Geneva
51/
Conventions of 12 August 1949: Geneva Convention Relative to the Protectionof Civilian Persons in Time of War (Geneva: International Committee of the
Red Cross, 1958) p. 598 (commentary on art. 147); Meron, supra note 25;
Anne Tierney Goldstein, Recognizing Forced Impregnation as a War Crime Under
International Law, 1993, pp. 9-11.
52/

Foca Indictment, supra note 31.

53/

Ibid., para. 10.2.

The present report recognized the current efforts to identify
54/
and rectify any limits that do exist to the application of existing norms
to situations of internal violence. The analytical report of theSecretary-General submitted pursuant to Commission on Human Rights
resolution 1997/21 endeavours to establish a framework for minimum
humanitarian standards and groups the limitations and failings of humanrights law under three broad categories: (1) concern for derogations;(2) questions concerning the accountability of armed groups under the humanrights standards; and (3) the lack of specificity in human rights standards
that prevent their effective application in situations of international
violence (E/CN.4/1998/87, para. 40).
55/

ICFTY, Tadic case, Appeals Chamber decision, paras. 84, 89.

56/

Nicaragua v. United States, supra note 39, p. 14.

57/
See also article 4 (2) (e) of Additional Protocol II (prohibiting“outrages upon personal dignity, in particular humiliating and degrading
treatment, rape, enforced prostitution and any form of indecent assault”).

E/CN.4/Sub.2/1998/13
page 37

58/
Theodor Meron, Human Rights in Internal Strife: Their
International Protection (Cambridge, Grotius Publ., 1987), pp. 44-50.
59/

Pictet, supra note 51, p. 36.

Ibid. (noting that the scope of application of article 3 “must be60/
as wide as possible” as article 3 “merely demands respect for certain rules,
which were already recognized as essential in all civilized countries, andembodied in the municipal law of the States in question, long before theConvention was signed.”).
61/

ICTFY Statute, art. 7; ITR Statute, art. 6.

62/Commission of Experts Report (S/1994/674), para. 55.

63/

Ibid., para. 313.

64/

ICTFY, Miljkovic Indictment, paras. 31, 33, 34.

65/

Ibid.

Human Rights Watch, supra note 7, pp. 15-19; Jamie Frederic Metzl,
66/
Rwandan genocide and the international law of radio jamming”, American Journalof International Law, vol. 91, pp. 628-634, 650.
67/
Ibid., p. 18; Human Rights Watch, War Crimes in
Bosnia-Herzegovina, vol. II (1993), pp. 166-167.
Metzl, supra note 66, p. 636 (citing Trial of the Major War
68/
Criminals Before the International Military Tribunal, Nürnberg, 1947, p. 548.
69/
Edith Coron, “Papon verdict condemns a collaborator and an era”,
The European, 6 April 1998.
70/
For example, the French courts in 1987 upheld the conviction ofNazi war criminal Klaus Barbie for crimes against humanity. International Law
Review, vol. 78, 1988.
71/
Ian Brownlie, Principles of Public International Law, 4th ed.
(Oxford: Clarendon Press, 1990), p. 485.

E/CN.4/Sub.2/1998/13
page 38

Appendix
AN ANALYSIS OF THE LEGAL LIABILITY OF THE GOVERNMENT
OF JAPAN FOR “COMFORT WOMEN STATIONS” ESTABLISHEDDURING THE SECOND WORLD WAR
Introduction
1.
Between 1932 and the end of the Second World War, the Japanese
Government and the Japanese Imperial Army forced over 200,000 women into
sexual slavery in rape centres throughout Asia. These rape centres have often
been referred to in objectionably euphemistic terms as “comfort stations”.
The majority of these “comfort women” 1/ were from Korea, but many were also
taken from China, Indonesia, the Philippines and other Asian countries underJapanese control. Over the past decade, an increasing number of womensurvivors of these atrocities have come forward to seek redress for thesecrimes. The present appendix relies exclusively on the facts established in
the Japanese Government’s own review of the involvement of Japanese military
officials in establishing, supervising and maintaining rape centres during theSecond World War. Based on these admissions by the Japanese Government, theappendix then seeks to evaluate the Japanese Government’s current legal
liability for the enslavement and rape of women in “comfort stations” during
the Second World War. Although numerous grounds for liability may exist, thisreport focuses specifically on liability for the most egregious international
crimes of slavery, crimes against humanity and war crimes. The appendix also
sets out the legal framework under international criminal law and examines
claims that may be brought by survivors for compensation.
I.

THE POSITION OF THE GOVERNMENT OF JAPAN

2.
After denying for many years the extent to which the Japanese military
was directly involved in establishing and supervising rape centres during theSecond World War, the Japanese Government finally recognized the extent of its
own involvement in the establishment of the “comfort stations” in an official
study entitled “On the issue of wartime 'comfort women' of 4 August 1993 by
the Japanese Cabinet Councillors’ Office on External Affairs and in astatement by the Chief Cabinet Secretary on the same date (E/CN.4/1996/137,
annex I)”. The study included a review of wartime archives and interviews
with both military personnel and former “comfort women”. As discussed in thepresent appendix, the 1993 study highlights the “comfort women’s” lack ofpersonal and sexual autonomy and the regulation of the health of the women as
if they were chattel.
3.
The Japanese Government has recently offered a number of publicapologies for the “problem” of the “comfort women.” Most notably, in
July 1995, on the occasion of the fiftieth anniversary of the end of theSecond World War, Japanese Prime Minister Tomiichi Murayama noted that “thescars of war still run deep” and that the “problem of the so-called 'wartime
comfort women' is one such scar, which, with the involvement of the Japanesemilitary forces of the time, seriously stained the honour and dignity of many
women. This is entirely inexcusable. I offer my profound apology to all
those who, as wartime comfort women, suffered emotional and physical wounds
that can never be closed.” 2/E/CN.4/Sub.2/1998/13
page 39

4.
Despite these apologies and admissions, the Japanese Government
continues to deny legal liability for the Japanese military’s actions withrespect to the “establishment and management” of the comfort stations(see E/CN.4/1996/137). In particular, in responding to a report by theSpecial Rapporteur of the Commission on violence against women,
Ms. Radhika Coomaraswamy (E/CN.4/1996/53/Add.1), the Japanese Government hasforcefully denied legal liability on a number of substantive grounds, the mostsignificant of which include: (a) that recent developments or advances ininternational criminal law may not be applied retroactively; (b) that thecrime of slavery does not accurately describe the system established throughthe “comfort stations” and that the prohibition against slavery was not, inany event, established as a customary norm under applicable international law
at the time of the Second World War; (c) that acts of rape in armed conflict
were not prohibited by either the Regulations annexed to the Hague Convention
No. IV of 1907 or by applicable customary norms of international law in force
at the time of the Second World War; and (d) that the laws of war would only
apply, in any event, to conduct committed by the Japanese military against
nationals of a belligerent State and would not, therefore, cover the actionsof the Japanese military with respect to Japanese or Korean nationals, since
Korea was annexed to Japan during the Second World War (ibid.).
5.
Following the Government of Japan’s apologies for the Japanesemilitary’s direct involvement in the “comfort stations”, the Japanese
Government established in July 1995 the Asian Women’s Fund “to protect women’shuman rights in Japan and the world.” 3/ The Asian Women’s Fund supports
women’s non-governmental organizations (NGOs) “which take steps to alleviate
problems women face today”; provides counselling services for women; supports
research and academic study; holds meetings and conferences to address issues
affecting women; and, with respect to the “comfort women”, promotes “thedesire to convey to these women the sincere apologies and remorse felt by theJapanese people” through “atonement” funds that are raised directly fromdonations made by the Japanese public. 4/
6.
With respect to claims for legal compensation, the Japanese Government
argues that individual “comfort women” have no right to such compensation.
Alternatively, the Government of Japan also argues that any individual claims
that these women may have had for compensation were fully satisfied by peace
treaties and international agreements between Japan and other Asian States
following the end of the Second World War. Finally, the Government of Japan
additionally claims that any civil or criminal cases concerning the Second
World War rape centres would now be time-barred by applicable statute oflimitations provisions (see E/CN.4/1996/137).
II.

THE NATURE AND EXTENT OF THE RAPE CENTRES

7.
It is now clear that both the Japanese Government and military weredirectly involved in the establishment of rape centres throughout Asia during
the Second World War. The women who were enslaved by the Japanese military inthese centres - many of whom were between the ages of 11 and 20 - were housedin locations throughout Japanese-controlled Asia, where they were forcibly
raped multiple times on a daily basis and subjected to severe physical abuseand exposed to sexually transmitted diseases. 5/ Only about 25 per cent ofE/CN.4/Sub.2/1998/13
page 40these women are said to have survived these daily abuses. 6/ To obtain these“comfort women”, the Japanese military employed physical violence, kidnapping,coercion and deception. 7/
8.
Preliminary investigations by governmental and non-governmentalorganizations have revealed three categories of “comfort stations”: (1) thoseunder the direct management and control of the Japanese military; (2) thoseformally under the management of private traders but effectively under thecontrol of the military and used exclusively by the military and its civilian
employees; and (3) those run by private entities in which the military was
given priority but which were also available for Japanese citizens.8/ The
second category of “comfort stations” is believed to have been the mostcommon. 9/ Although the Japanese Government has acknowledged “moral
responsibility” for the Japanese military’s involvement in these actions,Japan consistently has denied all legal responsibility. 10/
9.
The Japanese Government’s own report highlights the following relevantfacts:(a)Reasons for establishing the comfort stations. “The comfort
stations were established in various locations in response to the request of
the military authorities at the time. Internal government documents fromthose days cite as reasons for establishing comfort stations the need toprevent anti-Japanese sentiments from fermenting [sic] as a result of rapes
and other unlawful acts by Japanese military personnel against local residents
in the areas occupied by the then Japanese military, the need to prevent lossof troop strength by venereal and other diseases, and the need to prevent
espionage” (E/CN.4/1996/137, p. 14);(b)
Time period and location. “As some documents indicate that a
comfort station was established in Shanghai at the time of the so-called
Shanghai Incident in 1932 for the troops stationed there, it is assumed that
comfort stations were in existence since around that time to the end of theSecond World War. The facilities expanded in scale and in geographical scope
later on as the war spread” (ibid., pp. 14-15);(c)
Military control over private operators. “Many comfort stations
were run by private operators, although in some areas there were cases inwhich the then military directly operated comfort stations. Even in thosecases where the facilities were run by private operators, the then Japanesemilitary was involved directly in the establishment and management of the
comfort stations by such means as granting permission to open the facilities,
equipping the facilities, drawing up the regulations for the comfort stations
that set the hours of operation and tariff and stipulated such matters as
precautions for the use of the facilities” (ibid., p. 16);(d)
Military supervision of health conditions. “With regard to thesupervision of the comfort women, the then Japanese military imposed suchmeasures as mandatory use of contraceptives as a part of the comfort station
regulations and regular check-ups of comfort women for venereal and otherdiseases by military doctors, for the purpose of hygienic control of the
comfort women and the comfort stations” (ibid.);

E/CN.4/Sub.2/1998/13
page 41(e)Restrictions on freedom of movement. “Some stations controlled
the comfort women by restricting their leave time as well as the destinations
they could go to during the leave time under the comfort station regulations.
It is evident, at any rate, that, in the war areas, these women were forced tomove with the military under constant military control and that they weredeprived of their freedom and had to endure misery” (ibid.);(f)
Recruitment. “In many cases private recruiters, asked by the
comfort station operators who represented the request of the military
authorities, conducted the recruitment of the comfort women. Pressed by thegrowing need for more comfort women stemming from the spread of the war, these
recruiters resorted in many cases to coaxing and intimidating these women to
be recruited against their own will, and there were even cases whereadministrative/military personnel directly took part in the recruitment”(ibid., p. 17);(g)
Transportation. “In quite a few cases the women were transported
to the war areas by military ships and vehicles, and in some cases they wereleft behind in the confusion of the rout that ensued Japanese defeat” (ibid.).
10.
These facts, as stipulated by the Japanese Government, clearly
demonstrate that contrary to repeated claims that the so-called “comfort
women” “worked” in privately administered brothels, the women, many of whomwere still children at the time, were in fact enslaved in rape centres either
directly by the Japanese military or with the full knowledge and support of
the Japanese military. The women and children who were held there against
their will inside these “comfort stations” were then subjected to acts of rapeand sexual violence on such a massive scale that the nature of the crime may
only properly be described as a crime against humanity.
III.

PREVAILING NORMS OF SUBSTANTIVE CUSTOMARY INTERNATIONAL LAW

11.
This appendix considers customary international law norms that may be
applied to the enslavement of “comfort women” by the Japanese Government and
the Japanese Imperial Army during the Second World War, focusing in particularon customary international norms prohibiting slavery, rape as a war crime andcrimes against humanity.
A.

Slavery and the slave trade

12.
Unquestionably, slavery and the slave trade were prohibited wellbefore the “comfort stations” were created. The Nürnberg prosecutions
following the Second World War merely “made explicit and unambiguous what wastheretofore ... implicit in international law, namely that ... to exterminate,
enslave or deport civilian populations, is an international crime.”11/
Indeed, the prohibition against slavery in particular has clearly attained
jus cogens status. 12/ Accordingly, the Japanese military’s enslavement of
women throughout Asia during the Second World War was a clear violation, evenat that time, of customary international law prohibiting slavery.
13.
By the beginning of the nineteenth century, many countries already had
banned the importation of slaves. 13/ This prohibition was accompanied by thedevelopment of multiple international agreements through which countries

E/CN.4/Sub.2/1998/13
page 42sought to end slavery and the slave trade. 14/ An international arbitrationcase as early as 1855 stated that the slave trade was “prohibited by all
civilized nations and contrary to the law of nations”. 15/ By 1900, slavery
in its basic form was almost entirely eradicated in most countries.16/
Notably, Japan appears to have declared as early as 1872, in a case in whichit convicted Peruvian traders of the crime of slavery, that Japan had in factprohibited the slave trade throughout its history. 17/
14.
By 1932, at least 20 international agreements suppressing the slave
trade, slavery or slavery-related practices had been concluded. 18/ Moreover,of a representative sample of States in 1944, virtually all prohibited slavery
under their national laws, including Japan. 19/ Due to the prevalence of theinternational condemnation of slavery before the Second World War, the1926 Slavery Convention, which was developed by the League of Nations andprovided a definition of slavery as “the status or condition of a person overwhom any or all of the powers attaching to the right of ownership are
exercised”, was clearly declaratory of customary international law by at least
the time of the Second World War. 20/
15.
The customary nature of the prohibition on slavery is equally evident in
the body of law governing the treatment of civilians under the rules of war.
One of the most basic international instruments on the laws of war to be
adopted in this century, the Hague Convention No. 4 of 1907, incorporates
important protections for civilians and belligerents from enslavement andforced labour. The Nürnberg judgement against Nazi war criminals following
the Second World War confirmed, moreover, that the 1907 Hague Convention was
clearly declaratory of customary international law by the Second World
War. 21/
16.
Pursuant to article 6 (c) of the Nürnberg Tribunal's official Charter,
the Allied Powers convicted a number of war criminals on charges of “warcrimes”. In particular, war crimes in the Nürnberg Charter included“ill-treatment or deportation to slave labour or for any other purpose ofcivilian population of or in occupied territory”. Article 5 (c) of theCharter of the International Military Tribunal for the Far East included
similar language. It is important to recognize, once again, that theprosecutions of Japanese and German war criminals based on these codificationsof international law were expressly based on pre-existing standards,22/
including those standards which clearly prohibited slavery prior to the Second
World War. 23/
B.

Rape as a war crime17.
As with slavery, the laws of war also prohibited rape and forced
prostitution. Several early authoritative sources on the rules of war - mostprominently, the 1863 Lieber Code - explicitly prohibited rape or the
mistreatment of women during war. 24/ Moreover, a number of persons wereprosecuted following the Second World War based in part on charges of forced
prostitution and rape, further establishing that such conduct was
unlawful. 25/ The Hague Convention Regulations of 1907 further provided that“[f]amily honour and rights ... must be respected”. 26/ Indeed, article 27 of
the Fourth Geneva Convention, which is considered declaratory of customaryinternational law and incorporates the Hague Convention's earlier “family

E/CN.4/Sub.2/1998/13
page 43

honour” language, 27/ makes explicit that “[w]omen shall be especially
protected against any attack on their honour, in particular against rape,
enforced prostitution, or any form of indecent assault”. Although thecharacterization of rape as a crime against women’s honour, rather than acrime of violence, is unfortunate and incorrect, it is well established thatrape and forced prostitution were prohibited under customary international law
by at least the time the first “comfort stations” were established.28/
C.

Crimes against humanity

18.
The widespread or systematic enslavement of persons has also beenrecognized as a crime against humanity for at least half a century. This isparticularly true when such crimes have been committed during an armed
conflict, even though a nexus to armed conflict is no longer considered anecessary element of crimes against humanity.
19.
Article 6 (c) of the Nürnberg Charter and Control Council Law No. 10,
which was established to facilitate additional national prosecutions of war
criminals in Germany following the Second World War, listed “enslavement,
deportation and other inhumane acts committed against any civilian population”
as crimes against humanity. Similarly, article 5 of the Charter of theInternational Military Tribunal for the Far East in Tokyo also listed
enslavement, deportation to slave labour and other inhumane acts as crimes
against humanity.
20.
In addition to enslavement, widespread or systematic acts of rape also
fall within the general prohibition of “inhumane acts” in the traditional
formulation of crimes against humanity that is contained in the
Nürnberg Charter and the Charter of the International Military Tribunal for
the Far East in Tokyo. 29/ In more recent codifications of crimes against
humanity, rather than relying on the residual provision of “other inhumaneacts”, rape has been explicitly listed as a crime against humanity whencommitted in the course of either an internal or international armed conflictand directed against any civilian population. Such recent codifications ofcrimes against humanity include article 5 of the Statute of the International
Criminal Tribunal for the Former Yugoslavia and article 3 of the International
Tribunal for Rwanda, both of which explicitly list enslavement and rape as
constituent acts of crimes against humanity.
21.
Proof of planning, policy or design is generally considered a necessary
element in a prosecution of crimes against humanity, 30/ however, the failure
to take action in the face of widespread violations can be sufficient toestablish this requisite element. 31/ In addition, both military personnel
and civilians occupying certain positions may be held accountable for crimes
against humanity.
IV.

APPLICATION OF SUBSTANTIVE LAW

22.
The treatment of the “comfort women” falls within the ordinary usage of“slavery” and the “slave trade” and meets the 1926 Slavery Convention
definition of slavery as “the status or condition of a person over whom any or
all of the powers attaching to the right of ownership are exercised”.
According to the Japanese Government's own admissions, as noted above, theE/CN.4/Sub.2/1998/13
page 44

women were “deprived of their freedom” and “recruited against their own will”.
Moreover, some women were purchased and therefore easily fit the classic
mould of slavery. The exchange of money, however, is not the only or even themost significant indicia of slavery. To the extent that any or all of the“comfort women” experienced a significant loss of autonomy, thereby rendering
their treatment by the Japanese military as anything akin to the treatment ofchattel, criminal liability for enslavement would clearly attach for both theperpetrators of the criminal acts described and their superior officers.
Once again, in the particular case of the “comfort women”, the Japanese
Government’s own studies have highlighted the extent to which the women weredeprived of personal freedom, moved along with military troops and equipment
into and out of war zones, denied control over their sexual autonomy andsubjected to hideous regulation on a chattel-like basis of their reproductive
health in an effort to protect the military troops from sexually transmitted
diseases.
23.
In those limited cases that the Japanese Government may claim
technically fall outside of the definition of slavery, the “comfort women”
were still clearly raped and held in war zones under conditions that, at thevery least, did not comply with permissible forms of “forced labour”.32/
With respect to forced prostitution and rape, the Japanese Government has
admitted that its actions severely injured the honour and dignity of many
women. Although not acknowledged explicitly, it is clear that the harm towhich the women were subject included rape and forcible sexual conduct on aregular basis. These actions therefore easily qualify as rape and forced
prostitution in violation of the laws of war.
24.
Due to the massive scale on which these crimes were committed and to theJapanese military’s clear involvement in the establishment, maintenance andregulation of these rape centres, Japanese military officials who wereinvolved or responsible for the “comfort stations” may similarly be held
responsible for crimes against humanity. As a result, the Japanese Government
itself also has a continuing obligation to provide compensation for the harmsthat these women and girls suffered due to the actions of the Japanesemilitary.
V.

DEFENCES OF THE JAPANESE GOVERNMENTA.

Retroactive application of the law

25.
At the time of the Nürnberg trials, the defendants and some commentators
protested that prosecutions for crimes against humanity violated the principleof legality (nullum crimen sine lege) because the crimes were newly defined in
the Tribunal's Charter and the defendants' actions therefore did not violate
international law at the time that they were committed. 33/ Japan has made asimilar argument regarding the allegation by the former “comfort women” thatJapan acted in violation of customary international law in enslaving andraping “comfort women” across Asia. 34/
26.
As discussed above, the Japanese Government's claims that the actions of
the Japanese military during the Second World War were not prohibited during
the time period in which the offences were committed because the international
crimes of rape and enslavement were not clearly prohibited as customary norms

E/CN.4/Sub.2/1998/13
page 45

during the Second World War are easily refuted. Similar arguments were
unpersuasive 50 years ago when they were first raised at the Nürnberg trials
and, for the reasons stated above, they remain unpersuasive today.
B.

Prohibition of slavery

27.
Customary international prohibitions against slavery were clearly
established by the time of the Second World War and were included in theTokyo and Nürnberg Charters that codified customary international law inpreparation for criminal trials following the end of the Second World War.
As customary international law, prohibitions against slavery may be applied
under the laws of war or independently as substantive violations irrespectiveof the nature or even the existence of an armed conflict.
C.

Rape and forced prostitution

28.
The Japanese Government has attempted to refute the construction of the“family honour” language in the Hague Convention No. IV of 1907 as protecting
the “comfort women” by arguing that the Convention “only laid down generalprinciples which may be accepted by signatories to the convention as internal
law in such forms as instruction to the armed labour force”. 35/ The Japanese
Government claims, in essence, that acts of rape were not explicitly
prohibited by the Hague Convention or the laws of war during the Second World
War. As discussed above, this interpretation is belied by the acceptance ofthe Hague Convention as customary international law governing the laws of war
and by other law of war sources that confirm the international prohibition on
the rape of civilians during armed conflicts. As a result, the prohibitions
against rape contained in the “family honour” language represented a binding
rule of international law during the Second World War.
D.

Status of Korea

29.
Japan also has sought to deny liability on the ground that Korean
women were not protected by customary international law norms prohibiting
enslavement and rape because such norms are based on the law of war, which
protects only civilians in occupied territories and not civilians in theirhome countries. Since Korea was annexed to Japan during the time period inquestion, this argument contends that such norms were inapplicable to the
Korean women.
30.
Japan is not exempt from liability even under these circumstances. As
set forth above, prohibitions concerning slavery are not based solely on war
crimes. Both as a customary international crime applicable in wartime andpeacetime and as a crime against humanity, these acts were clearly prohibitedas egregious violations of customary international law regardless of theterritorial status of the Korean peninsula at the time that the offences werecommitted. As a result, these norms apply equally to Korean women, whether or
not they were civilians in an occupied territory.

E/CN.4/Sub.2/1998/13
page 46

VI.

REDRESS

31.
Under customary international law, the Government of Japan must provide
redress for the atrocities perpetrated against the “comfort women”. Redress
should take the form of individual compensation to the former “comfort women”
by the Government of Japan. Alternatively, compensation could also be soughtby States on behalf of their citizens who were former “comfort women”. These
States must then establish mechanisms to distribute those funds to theaggrieved victims. In addition, as indicated above, government and military
personnel must also be prosecuted for their culpability in establishing andmaintaining the rape centres.
A.

Individual criminal liability

32.
Individual Japanese military officers and soldiers who committed
unlawful acts must be held individually liable for the harm they caused.
To the extent that sufficient evidence may be established, given the five
decades that have passed, these individuals can and must be brought tojustice.
33.
Precedent for such prosecutions is long-standing. In 1946, theTemporary Court Martial Tribunal in Batavia, Indonesia, conducted by theGovernment of the Netherlands, found nine Japanese soldiers guilty of
abducting girls and women for purposes of forced prostitution and rape.36/
Similarly, the Philippine Tribunal found a Japanese officer guilty of rapeand sentenced him to life imprisonment. 37/ Applying customary internationallaw, the Nürnberg and Tokyo Tribunals also found individual military officers,
their commanding officers, and the German and Japanese Governments responsible
for committing war crimes and crimes against humanity. In 1946 theUnited Nations General Assembly reaffirmed, in resolution 95 (I) of
11 December 1946, that the principles of international law set forth in
the Charter of the International Military Tribunal and the Charter of theInternational Military Tribunal for the Far East were customary internationallaw recognized by United Nations Members generally.
34.
Article 11 of the Treaty of San Francisco provides, moreover, that Japan
must accept the judgements of the International Military Tribunal for the
Far East (IMTFE) and other Allied War Crimes Tribunals both within and outside
Japan. In addition, although the Nürnberg Charter used new terminology inreferring to “crimes against humanity” it did not actually create new law ormake illegal behaviour that was previously permissible under customaryinternational law. According to Oppenheim:“the entire law of war is based on the assumption that its commands arebinding not only upon States but also upon their nationals, whether
members of their armed forces or not. To that extent no innovation was
implied in the Charter annexed to the Agreement of 8 August 1945, forthe punishment of the Major War Criminals of the European Axis inasmuch
as it decreed individual responsibility for war crimes proper and forwhat it described as crimes against humanity ...” 38/
Under these precedents, individual officers clearly can and should be punished
for their crimes.

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page 47

35.
In addition to the liability of each individual soldier, military andgovernmental officers also are liable for the establishment and maintenanceof the “comfort stations” by those soldiers and officers under their command.
The command responsibility doctrine provides that superior officers will beheld responsible for the illegal acts committed by their subordinates: (a) if
the superiors knew or had reason to know that such acts were about to becommitted and initiated no preventive action; or (b) if the acts werecommitted and superiors took no measures to prevent their repetition.39/ The
doctrine was first used as the basis for an international prosecution during
the United States military commission trial that resulted in the conviction ofJapanese general Tomoyuki Yamashita for the killing of tens of thousands ofFilipino and American prisoners of war. The principles underlying thedoctrine had, however, emerged at least as early as the Second World War, whenrecommendations were made at Versailles that Germany's Kaiser be tried as awar criminal because he and the commanding officers under him “could at least
have mitigated the barbarities committed during the course of the war” bytheir subordinates. 40/ Commentators have traced the foundations of thecommand responsibility as far back as fifteenth century France 41/ and the
Roman Empire in 19 B.C. 42/ The principle was most clearly articulated inseveral of the Nürnberg trials and in the post-war trial of United States
Colonel Medina for the 1969 My Lai massacre in Viet Nam - prosecutions, it
should be noted, that applied pre-existing customary norms.
36.
The widespread and systematic involvement of the Japanese military in
the establishment and operation of the “comfort stations” ensures that senior
officers of the Japanese military must have had actual or constructive
knowledge of the existence of the “comfort stations”. It is also important
to note that mid-level Japanese military officials who were involved in or
responsible for the “comfort stations” may not escape criminal liability byasserting a “superior orders” defence, as such a claim may only be consideredin mitigation of any punishment that is actually imposed. 43/
37.
Japan is clearly the most appropriate location to conduct criminal
prosecutions of those responsible for implementing the “comfort station”
system. The Korean Council for the Women Drafted for Sexual Slavery by Japan
filed a complaint in 1994 with the Chief Prosecutor in Tokyo seeking criminal
prosecution of Japanese military officers and others involved in the operationof the “comfort stations”. 44/ The Japanese Government should act as a matterof urgency on this complaint and should seek to bring charges against any
surviving individuals who operated or frequented the military's rape centres.
38.
Other national courts may also be available to hear criminal
proceedings, particularly since the principle of universal jurisdiction incases involving slavery, crimes against humanity and war crimes properly
permits any nation capturing the perpetrators of such universally condemned
crimes to prosecute the offences. 45/ Nonetheless, while international law
permits the exercise of universal jurisdiction, enabling national legislationis necessary for suits to actually move forward. 46/ In Canada, for example,
this legislative basis is section 7 (3.71) of the Criminal Code, which
provides that anyone who has committed a crime against humanity or a war crime
outside Canada can be tried as if the crime had been committed in Canada.47/
In the first prosecution ever attempted under this provision, the accused wasa former member of the gendarmerie in Hungary who had assisted in the forced

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confinement of Jews under Nazi command. 48/ Other jurisdictions should takeall steps necessary to prosecute those Japanese military and government
officials who were involved in or responsible for the “comfort stations” intheir domestic courts, including, but not limited to, the enforcement ofdomestic laws granting jurisdiction for such offences and the provision oflegal assistance and interpreters to the victims.
39.
Criminal charges that may be brought against individual officers orcommand officials at this point in time would not be time-barred. Crimes
against humanity and war crimes are not subject to any statute of limitations.
They may not be extinguished by the passage of time. Indeed, in 1953, a
United Nations report on international jurisdiction over crimes (A/2645)
stated that a concept of a statute of limitations does not exist in presentinternational law. 49/ In the Barbie prosecution, the French Court ofCassation similarly held that customary international law did not recognize
a statute of limitations for crimes against humanity. 50/ Additionally,treaty law confirms that the international community will not bar claims
for egregious violations of international law, such as war crimes or crimes
against humanity, under statute of limitations concerns.
40.
Even if a statute of limitations could conceivably be invoked, it is
not applicable in this situation where new material facts have come to lightrecently. The first official hearings on the “comfort stations” were not heldby Japan until 1992, and it was not until 1993 that the Japanese Government
recognized the Japanese military's role in establishing and administering the“comfort stations”. In light of the exceptional circumstances that prevented
the “comfort women” from adequately pursuing their claims and the failure of
the Japanese Government to adequately address the role that the Japanesemilitary played in establishing and maintaining these rape centres, theinterests of justice require that any applicable statute of limitations would
begin to run no earlier than the date of the 1992 admissions by the Japanese
Government.
B.

State responsibility and liability to pay compensation

41.
Prior to the Second World War, it was clear that a Government and its
officials could be held liable for violations of international law under atheory of “original liability” for acts performed by a Government and “actionsof the lower agents or private individuals as are performed at theGovernment's command or with its authorization”. 51/ A State that isoriginally liable for a violation of international law has committed an actof “international delinquency”. An “international delinquency” consists of“any injury to another State committed by the Head or Government of a State inviolation of an international legal duty. Equivalent to acts of the Head andGovernment are acts of officials or other individuals commanded or authorized
by the Head or Government”. 52/ The responsible State is then liable “to pay
compensation for injurious acts of its officials which, although unauthorized,
fall within the normal scope of their duties”. 53/ Therefore, a State wasconsidered liable for commission of an injury to an individual alien within
its territory if an agent of the State caused wrongful injury to that
individual. Thus, Japan is liable for the actions of its military and anyof its agents, including the private individuals who ran and profited from“comfort stations” at the request of the Japanese military. 54/

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42.
The Japanese Government is also liable for its failure to prevent theharm that was inflicted on the “comfort women”. Under customary internationallaw, States are liable for failing to act to prevent harm to aliens.
Article 3 of the Hague Convention No. IV of 1907, which reflected customaryinternational law by the Second World War, provided that a party to the1907 Convention that violated the Convention's provisions was liable to pay
compensation for the violation and “shall be responsible for all acts
committed by persons forming part of its armed forces”. This principle ofresponsibility and compensation has been described as an extension of theprinciple of respondeat superior to the law of nations, making States liable
for the acts of their military forces. 55/ Pursuant to article 3 of the Hague
Convention, each State has a duty to prevent, investigate, and punish grosshuman rights violations and violations of fundamental freedoms. The Japanese
Government, therefore, is independently liable for failing to prevent harm to
the “comfort women” and to punish the offenders. 56/
43.
These legal rules date back at least to the 1920s. For example, in 1927
a General Claims Commission awarded damages to a widow in the Janes case tocompensate for the Mexican Government's failure to apprehend and prosecute theperson who murdered the woman’s husband during the Revolution. 57/ The
Commission stated that the Mexican Government was “liable for not having
measured up to its duty of diligently prosecuting and properly punishing theoffender”. 58/ In its decision, the Commission explicitly rejected the viewthat the failure of a State to punish wrongdoers should be deemed approval of
the criminal conduct, thus making the Government complicit in the murder
itself. Instead, the Commission held that a State's failure to prosecute andpunish the offender against an alien was a separate offence by the State.
Therefore, damages included both compensatory damages for Janes's death andadditional damages to the family for the indignity of the lack ofpunishment. 59/
44.
The Japanese Government has also argued that because conventional
international law is deemed to regulate relationships between States, rather
than relationships between individuals and States, no claim may be madeagainst Japan by individual “comfort women”. 60/ This argument, however, isclearly without merit since by the late 1920s international law recognizedthat when a State injured the nationals of another State, it inflicted injury
upon that foreign State and was therefore liable for damages to make whole theinjured individuals. Moreover, international law recognizes that individuals
are also “subjects of rights conferred and duties imposed by internationallaw.”. 61/
1.

Individual compensation

45.
The “comfort women” have expressed their belief that the Government ofJapan should provide: sincere and individual apologies; acknowledgment of theparticipation of the Japanese Government and army command; recognition of thenature and the extent of the violations of international law; and compensation
for individual victims (see E/CN.4/1996/53/Add.2). As noted above, theJapanese Government's assertions that individuals are not subjects ofinternational law are contradicted by several sources of international law,
including: the Hague Convention No. IV of 1907; the Paris Peace Conference of1919 (Treaty of Versailles); the Charter of the Tokyo War Crimes Tribunal; andE/CN.4/Sub.2/1998/13
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customary international law. These various legal documents and theories
demonstrate the obligation of States to pay compensation for breaches ofinternational law. In addition, as Theo van Boven noted in his study, aState’s responsibility for breaches of international obligations implies asimilar and corresponding right on the part of individuals to compensation forsuch breaches. The Treaty of Versailles, for example, provided that
individuals could bring claims for damages against Germany.
46.
In particular, a “prime purpose” of article 3 of the Hague Convention“was from the outset to provide individual persons with a right to claim
compensation for damages they suffered as a result of acts in violation of theRegulations.” 62/ Although this language is not expressed in article 3, “thedrafting history of the article leaves no room for doubt that this was
precisely its purpose.” 63/ Notably, while the term “reparation” may take theform of restitution, indemnity, monetary compensation or satisfaction,64/“Article 3 specifically and solely utilizes the term 'compensation,'”65/
which, by definition, means “payment of a sum of money to make good thedamage ...”. 66/ Thus, “[t]he use of this term instead of the more general'reparation' may be seen as yet another indication that ... the drafters of
the article had in mind the case of individual persons, victims of the laws ofwar, who wish to bring a claim for the injury or damage they suffered.”67/
47.
In addition, the 1927 decision of the Permanent Court of International
Justice (PCIJ) in the Chorzów Factory case held that if the situation prior toan act in violation of international law could not be restored (e.g. property
returned), compensation must be paid. 68/ Since restoration of the victimsof the “comfort stations” to their status prior to this violation isclearly impossible, compensation must be paid. Other PCIJ decisions
similarly confirm the existence in international law of rights including
compensation for private individuals. 69/ Indeed, Japan itself has
acknowledged the possibility - if not the necessity - of individualcompensation for breaches of international law. Agreements concluded by Japan
with some of the Allied Powers specifically refer to individual redress,
unlike those agreements concluded with Korea and the Philippines, which refer
only to State claims for redress. 70/ For example, the Greece-Japan
Agreement, the United Kingdom-Japan Agreement, and the Canada-Japan Agreement
all contain provisions for compensation “for personal injury or death whicharose before the existence of a state of war ... for which the Government ofJapan [is] responsible according to international law.” 71/ Particularly inlight of the Government's prior admissions - implemented through numerous
treaties - the Government's claim that individual compensation is not
permissible as a remedy for governmental violations is simply not credible.
48.
In short, the individual “comfort women” clearly have a right toadequate compensation for the harms they suffered at the hands of Japanese
Government and military officials.
2.

Civil suits for compensation

49.
In the absence of appropriate action by the Japanese Government to meettheir continuing legal obligations, surviving “comfort women” may be able tobring civil suits before judicial tribunals for compensation. Recourse may beavailable to tribunals in Japan and in other jurisdictions if Japanese courts

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fail to grant adequate remedies. Given the nature and magnitude of the harms
committed, these remedies should be pursued, notwithstanding the passage of
time.
50.
Clearly Japan is the most appropriate venue for the introduction ofcivil suits related to the “comfort women” tragedy. The recent court decisionfrom the Shimonoseki branch of the Yamaguchi District Court in April 1998
concerning the Japanese Government’s liability to the “comfort women” is awelcome indication that some of these women may ultimately receive legal
redress through Japanese courts. 72/ In this recent case, a Japanese district
court found that the Japanese Government had a duty to enact legislation tocompensate the comfort women and that “by neglecting the comfort women formany years, the defendant country [Japan] exacerbated the pain and committed a
new harm.” 73/ The court noted, moreover, that:“[u]pon examination of facts presented in this case, the comfort womensystem was extremely sexist and racist, disgraced women, trampled on
racial pride, and can be seen as a violation of fundamental human rights
relating to the core values expressed in Section 13 of the Japanese
National Constitution.” 74/
51.
The court decision ultimately held the Government of Japan liable andordered payments to three women nationals of the Republic of Korea of
300,000 yen each (approximately US$ 2,300). 75/ Several other cases have also
been filed in Japan by groups of Filipino, Korean, 76/ Dutch, 77/ andChinese 78/ citizens, as well as Koreans living in Japan. 79/ The first case
was filed in 1991, 80/ and at least six different groups of women had filed
lawsuits as of July 1996. 81/
52.
If remedies available within Japan prove inadequate, the “comfort women”
may also seek redress in the courts of other countries that grant jurisdiction
for such offences. In the United States, for example, the Alien Tort Claims
Act (ATCA) grants jurisdiction to United States courts to hear civil actions
for torts committed in violation of the law of nations or United States treaty
law. This avenue should be vigorously pursued by the “comfort women” as apotential forum for redress.
3.

Agreements on the settlements of claims

53.
The Government of Japan, while denying any liability to pay
compensation, argues in the alternative that compensation claims have in any
event been settled or waived through the operation of the peace treaties
concluded by Japan following the cession of hostilities. With respect to theclaims of Republic of Korea nationals, the Government of Japan relies onarticle II of the 1965 Settlement Agreement between Japan and Korea underwhich the parties agreed that “problems concerning property, rights, andinterests of the two Contracting Parties and their nationals (including
juridical persons) and concerning claims between the Contracting Parties andtheir nationals ... is settled completely and finally” (emphasis added).
54.
With respect to other nationals, the Japanese Government has similarly
argued that all claims were resolved by the Treaty of Peace that it signedwith the Allied Powers in San Francisco on 8 September 1951. Japan's

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compensation to the former Allied Powers are set forth in great specificity inarticle 14 of the treaty. Article 14 also includes a section waiving all
claims not set forth in the treaty. Japan relies on the waiver provision toargue that the treaty bars the former “comfort women’s” claims. The waiver
provision (art. 14 (b)) reads:“Except as otherwise provided in the present Treaty, the Allied Powers
waive all reparations claims of the Allied Powers, other claims of theAllied Powers and their nationals arising out of any actions taken by
Japan and its nationals in the course of the prosecution of the war, andclaims of the Allied Powers for direct military costs of occupation.”
55.
The Government of Japan’s attempt to escape liability through theoperation of these treaties fails on two counts: (a) Japan's direct
involvement in the establishment of the rape camps was concealed when thetreaties were written, a crucial fact that must now prohibit on equity grounds
any attempt by Japan to rely on these treaties to avoid liability; and (b) theplain language of the treaties indicate that they were not intended toforeclose claims for compensation by individuals for harms committed by theJapanese military in violation of human rights or humanitarian law.
56.
At the time these and other post-war treaties were signed, the Japanese
Government concealed the extent of the Japanese military’s involvement in the
horrifying treatment of the “comfort women.” 82/ Although there was clearly
ample knowledge within Korea, the Philippines, China and Indonesia that womenand girls had been enslaved and raped during the war, the systemic involvementof the Japanese Imperial Army was concealed by Japan following the war.
Private “entrepreneurs”, rather than the Japanese military, were suspected andoften blamed for the emergence of these rape centres.
57.
Given that the Japanese Government hid its involvement in these crimes
for such a long time and, indeed, continues to deny legal liability for them,
it is improper for Japan to argue that the settlement agreements or any otherpost-war treaties were intended to resolve all claims involving the “comfort
women”. The signatories could not have contemplated resolving claims foractions that were not, at the time, believed to be connected directly to theJapanese military.
58.
It is also self-evident from the text of the 1965 Agreement on the
Settlement of Problems concerning Property and Claims and on Economic
Cooperation between Japan and the Republic of Korea that it is an economic
treaty that resolves “property” claims between the countries and does notaddress human rights issues. 83/ There is no reference in the treaty to“comfort women”, rape, sexual slavery, or any other atrocities committed by
the Japanese against Korean civilians. Rather, the provisions in the treaty
refer to property and commercial relations between the two nations. In fact,
Japan's negotiator is said to have promised during the treaty talks that Japan
would pay the Republic of Korea for any atrocities inflicted by the Japanese
upon the Koreans. 84/
59.
Moreover, it is clear from the outline of claims presented by the Korean
representatives to Japan that “nothing in the negotiations concerns violationsof individual rights resulting from war crimes, crimes against humanity,

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breaches of the slavery convention, the convention against the traffic inwomen, or customary norms of international law.” 85/ And while Japan did makeexplicit apologies and agree to pay personal injury compensation in its
treaties with Western powers, it did not do so with the Koreans. 86/ The
generic use of the term “claims” under article II of the Settlement Agreement
must therefore be read in the context of this factual background. Clearly,
the funds provided by Japan under the Settlement Agreement were intended only
for economic restoration and not individual compensation for the victims ofJapan's atrocities. As such, the 1965 treaty - despite its seemingly sweeping
language - extinguished only economic and property claims between the twonations and not private claims, and Japan must still be held responsible for
its actions. 87/
60.
As noted above, the plain language of article 14 (b) of the 1951 peace
treaty waives all reparations claims and other claims of the Allied Powers andtheir nationals arising out of actions taken by Japan and its nationals during
the war ... (emphasis added).” By distinguishing between the claims for“reparations” and “other claims”, this language clearly indicates that thewaiver does not apply to compensation of the Allied Powers' nationals. The
only reparations contemplated in the waiver are those of the Allied nations
themselves. The only claims of the Allied Powers' nationals contemplated by
the waiver are those “other” than reparations. Thus, the claims forcompensation by the former “comfort women” are not barred by the waiver at all
because they do not fall within the claims discussed in the treaty.
61.
In addition, although China is not a signatory to the 1951 peace treaty,
the treaty does discuss China's rights vis-à-vis Japan following the war.
Interestingly, the treaty states in article 21 that China is entitled tobenefits under article 14 (a) (2), which sets forth the specific reparations
owed by Japan, but does not state specifically that China is subject to thewaiver provision in article 14 (b). Because the waiver does not apply to
China, there is no basis for the Japanese Government to argue that the treaty
bars Chinese nationals from seeking reparations from Japan.
62.
As with the 1965 Settlement Agreement between Japan and Korea, moreover,the interests of equity and justice must prevent Japan from relying on the1951 peace treaty to avoid liability when the Japanese Government failed toreveal at the time of the treaty the extent of the Japanese military’s
involvement in all aspects of the establishment, maintenance and regulation of
the comfort stations. 88/ As an additional principle of equity, when jus
cogens norms are invoked, States that stand accused of having violated suchfundamental laws must not be allowed to rely on mere technicalities to avoid
liability. And, in any event, it must be emphasized that Japan may always
voluntarily set aside any treaty-based defences to liability that may beavailable to them in order to facilitate actions that are clearly in theinterests of fairness and justice.
C.
1.

Recommendations

The need for mechanisms to ensure criminal prosecutions

63.
The United Nations High Commissioner for Human Rights should work forthe prosecution in Japan, and in other jurisdictions, of those responsible forE/CN.4/Sub.2/1998/13
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the atrocities that have now been clearly linked to the actions of theJapanese military in establishing the Japanese rape camps. It is incumbent
upon the United Nations to ensure that Japan fully satisfies its obligation toseek out and prosecute all those responsible for the “comfort stations” whoremain alive today and that other States similarly do all they can to assist
in the capture and prosecution of offenders in other jurisdictions.
Accordingly, the High Commissioner, together with Japanese officials, should
work to: (a) gather evidence on individual military and civilian personnel
who may have established, supported or frequented Japanese rape centres during
the Second World War; (b) interview victims; (c) forward the preparation ofcases for trial to Japanese prosecutors; (d) work with other States andsurvivors’ organizations to identify, arrest and prosecute offenders within
their jurisdictions; and (e) assist States in any way in the development oflegislation to allow such prosecutions in their jurisdictions.
2.

The need for mechanisms to provide legal compensation

64.
The Sub-Commission has joined other United Nations bodies in “welcoming”
the creation in 1995 of the Asian Women's Fund.
The Asian Women’s Fund wasestablished by the Japanese Government in July 1995 out of a sense of moral
responsibility to the “comfort women” and is intended to function as amechanism to support the work of NGOs that address the needs of the “comfort
women” and to collect from private sources “atonement” money for surviving“comfort women”. 89/ The Asian Women’s Fund does not, however, satisfy the
responsibility of the Government of Japan to provide official, legal
compensation to individual women who were victims of the “comfort women”
tragedy, since “atonement” money from the Asian Women’s Fund is not intended
to acknowledge legal responsibility on the part of the Japanese Government forthe crimes that occurred during the Second World War.
65.
Because the Asian Women’s Fund does not in any sense provide legal
compensation, a new administrative fund for providing such compensation shouldbe established with appropriate international representation. To accomplish
this, the United Nations High Commissioner for Human Rights should also
appoint, together with the Government of Japan, a panel of national andinternational leaders with decision-making authority to set up a swift andadequate compensation scheme to provide official, monetary compensation to the“comfort women”. Accordingly, the role of this new panel would be to:(a) determine an adequate level of compensation, looking to compensation that
may have been provided in comparable settings as guidance; (b) establish aneffective system for publicizing the fund and identifying victims; and(c) establish an administrative forum in Japan to expeditiously hear all
claims of “comfort women”. 90/ Such steps, moreover, should be taken as
quickly as possible in light of the advancing age of the comfort women.
3.

Adequacy of compensation

66.
An appropriate level of compensation should be based on considerations
such as the gravity, scope and repetition of the violations, the intentional
nature of the crimes committed, the degree of culpability of public officials
who violated the public trust, and the extensive time that has passed (andthus the loss of the present value of the money, as well as the psychologicalharm caused by the extensive delay in relief). In general, compensation

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applies to any economically assessable damage, such as physical or mental
harm; pain, suffering and emotional distress; lost opportunities, including
education; loss of earnings and earning capacity; reasonable medical and otherexpenses of rehabilitation; harm to reputation or dignity and reasonable costs
and fees of legal or expert assistance to obtain a remedy. Based on thesefactors, an adequate level of compensation should be provided without further
delay. 91/ Some consideration should also be given to the level ofcompensation that may be required to act as a deterrent to ensure that suchabuses will not occur in the future.
4.

Reporting requirements

67.
Finally, the Government of Japan should be required to submit a reportto the United Nations Secretary-General at least twice a year detailing the
progress that has been made in identifying and compensating the “comfort
women” and in bringing perpetrators to justice. The report should also bemade available in both Japanese and Korean and distributed actively bothwithin and outside of Japan, particularly to the “comfort women” themselves
and in the countries where they currently reside.
VII.

CONCLUSION

68.
The present report concludes that the Japanese Government remains liablefor grave violations of human rights and humanitarian law, violations thatamount in their totality to crimes against humanity. The Japanese
Government’s arguments to the contrary, including arguments that seek toattack the underlying humanitarian law prohibition of enslavement and rape,remain as unpersuasive today as they were when they were first raised before
the Nürnberg war crimes tribunal more than 50 years ago. In addition, theJapanese Government’s argument that Japan has already settled all claims fromthe Second World War through peace treaties and reparations agreements
following the war remains equally unpersuasive. This is due, in large part,to the failure until very recently of the Japanese Government to admit theextent of the Japanese military’s direct involvement in the establishment andmaintenance of these rape centres. The Japanese Government’s silence on thispoint during the period in which peace and reparations agreements between
Japan and other Asian Governments were being negotiated following the end of
the war must, as a matter of law and justice, preclude Japan from relying
today on these peace treaties to extinguish liability in these cases.
69.
The failure to settle these claims more than half a century after the
cessation of hostilities is a testament to the degree to which the lives ofwomen continue to be undervalued. Sadly, this failure to address crimes of asexual nature committed on a massive scale during the Second World War has
added to the level of impunity with which similar crimes are committed today.
The Government of Japan has taken some steps to apologize and atone for therape and enslavement of over 200,000 women and girls who were brutalized in“comfort stations” during the Second World War. However, anything less thanfull and unqualified acceptance by the Government of Japan of legal liability
and the consequences that flow from such liability is wholly inadequate. It
must now fall to the Government of Japan to take the necessary final steps toprovide adequate redress.

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Notes*
1/
This term has obvious derogatory connotations and is used solely
in its historical context as the term assigned to this particular atrocity.
In many ways, the unfortunate choice of such a euphemistic term to describe
the crime suggests the extent to which the international community as a whole,and the Government of Japan in particular, has sought to minimalize the natureof the violations.
2/Statement by Japanese Prime Minister Tomiichi Murayama, July 1995,
reprinted in Asian Women's Fund (an official programme description). See also
Japan's policy on the issues of violence against women and “comfort women”(E/CN.4/1996/137, annex) submitted to the Commission on Human Rights at its
fifty-second session.
3/

Asian Women's Fund, ibid.

4/

Ibid.

5/
Karen Parker and Jennifer F. Chew, “Compensation for Japan's WorldWar II war-rape victims”, Hastings International and Comparative Law Review,
vol. 17, 1994, pp. 497, 498-499.
6/
Ibid., p. 499 and note 6 (citing a 1975 statement by
Seijuro Arahune, Liberal Democratic Party member of the Japanese Diet,that 145,000 Korean sex slaves had died during the Second World War).
7/

Ibid.

The First Report on the Issue of Japan's Military “Comfort Women”,
8/
Centre for Research and Documentation on Japan's War Responsibility,
31 March 1944, pp.3-4.
9/

Ibid.

10/
Ibid., pp.5-16 and E/CN.4/1996/137, annex. See also Report of theCommittee of Experts on the Application of Conventions and Recommendations,International Labour Conference, 83rd session, 1996, report III (Part 4A),
paras. 103-107, 114.
11/
R. Jackson, The Nuremberg Case xiv-xv, 1971 (citing the The Final
Report to the President on the Nuremberg Trials).
12/
See Parker and Chew, supra note 5, p. 521 and note 135; Bassiouni,
main report, note 14.
13/
See generally Renee Colette Redman, “The League of Nations and theright to be free from enslavement: the first human right to be recognized ascustomary international law”, Chicago-Kent Law Review, vol. 70, 1994, pp. 759,

* References already cited in the main report are not duplicated in the
appendix; the reader is referred to the appropriate note in the main report.

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760; Slavery, report submitted by Benjamin Whittaker, Special Rapporteur of
the Sub-Commission (United Nations publication, Sales No. E.84.XIV.1),
updating the Report on Slavery by Mohamed Awad, submitted to the
Sub-Commission in 1966 (United Nations publication, Sales No. E.67.XIV.2).
14/

Humphrey, main report, note 33.

15/
The Lawrence, case cited in J.B. Moore, History and Digest of theInternational Arbitrations to which the United States has been a Party,
vol. 3, 1989, pp. 2824, 2825.
16/
M. Cherif Bassiouni, International Crimes: Digest/Index ofInternational Instruments 1815-1985, vol. 1, 1986, p. 419 and main report,
note 14 (detailing the incremental history of the international abolition ofslavery).
17/
See International Fellowship of Reconciliation, Recommendations toJapan on “sexual slavery”, 7 February 1994 (communication to the Government ofJapan).
18/

Bassiouni, main report, note 14.

19/
Ibid., pp. 283-287 (noting that although enslavement was not
specifically addressed in Japanese criminal law prior to 1944, the crime ofenslavement was subsumed under applicable crimes of kidnapping and forcible
confinement).
20/
See, e.g., The First Report on the Issue of Japan's Military“Comfort Women”, supra note 8, p. 79; see also Redman, supra note 13, p. 763(stating that the Slavery Convention became customary international law asof 1937).
21/
See also Finn Seyersted, United Nations Forces in the Law of Peaceand War, 1966, pp. 180-182.
22/
Trial of the Major War Criminals Before the International Military
Tribunal, vol. 1, p. 218.
23/
General Assembly resolution 95 (I) of 11 December 1946 entitled,“Affirmation of the Principles of International Law recognized by the Charterof the Nürnberg Tribunal”; General Assembly document A/64/Add.1 of 1946;
Yvonne P. Hsu, “'Comfort women' from Korea: Japan's sex slaves and thelegitimacy of their claims for reparations”, Pacific Rim Law and Policy
Journal, vol. 2, 1993, pp. 97, 110; The First Report on the Issue of Japan's
Military “Comfort Women”, supra note 8, p. 76.
24/
See generally Meron, main report, note 25; Frits Kalshoven,article 3 of the Convention (IV) concerning the Laws and Custom of War on
Land, signed at The Hague, 18 October 1907, in “Remembering what we have tried

E/CN.4/Sub.2/1998/13
page 58

to forget”, ASCENT, 1997, pp. 16-30.
25/
See John A. Appleman, Military Tribunals and International Crimes,
1954, p. 299 (citing the 1946 case of Washio Awachi in Batavia, Indonesia,
which recognized enforced prostitution as an offence); Hsu, supra note 23,
pp. 109-110; Meron, main report, note 25, p. 426, note 13; Verdict 231 of the
Temporary Court-Martial in Batavia (designating as war crimes “abduction ofgirls and women for forced prostitution”, “coercion to prostitution” and“rape” and convicting several defendants on those grounds).
26/
See Hsu, supra note 23, p. 107 (citing “family honour” language insupport of the argument that international law forbade abuses of comfort
women); U. Dolgopol and S. Paranjape, main report, note 48, p. 160 (“Theconcept of family honour includes the right of women in a family not to be
subjected to the humiliating practice of rape”.).
27/
Pictet, main report, note 51, p. 201, note 1 (stating thatthe provisions of article 27 of the Geneva Convention had their origin inarticle 46 of the Hague Convention Regulations); Theodor Meron, Human Rights
and Humanitarian Norms as Customary Law (Oxford: Clarendon Press, 1989),
p. 47.
See, e.g., Hsu, supra note 23, p. 111 and note 97 (arguing that28/
the Geneva Convention is merely a codification and extension of pre-existingcustomary international law); Pictet, main report, note 51, p. 205 (statingthat the provision regarding the protection of women was based on a provision
introduced into the Prisoners of War Convention in 1929).
29/

See the discussion in the main report.

30/

Meron, main report, note 25.

31/

Rape and Sexual Assault, main report, note 10.

32/
The First Report on the Issue of Japan's Military “Comfort Women”,
supra note 8, p. 76.
33/
See generally Bassiouni, main report, note 26, pp. 114-139;
Appleman, supra note 25, pp. 46-53; Hsu, supra note 23, p. 109, note 84.
34/
Views of the Government of Japan on the addendum 1(E/CN.4/1996/53/Add.1) to the report presented by the Special Rapporteuron violence against women. Document circulated informally by the Governmentof Japan at the fifty-first session of the Commission on Human Rights,
pp. 15-19, 23.
35/

Ibid., p. 24.

36/

See Japan Federation of Bar Associations (JFBA), Recommendations

E/CN.4/Sub.2/1998/13
page 59

on the Issue of “Comfort Women”, January 1995, p. 26; David Boling, “Massrape, enforced prostitution, and the Japanese Imperial Army: Japan eschews
international legal responsibility”, Columbia Journal of Transnational Law,
vol. 32, 1995, pp. 533, 545.
37/

JFBA, ibid.

38/
L. Oppenheim, International Law: A Treatise, H. Lauterpacht(ed.), 7th ed. (London, New York: Longmans Green, 1948-1952), sect. 153.
39/
See Christopher N. Crowe, “Command responsibility in theformer Yugoslavia: the chances for successful prosecution”, Universityof Richmond Law Review, vol. 29, 1994, pp. 191, 192; Security Council
resolution 827 (1993).
40/
Crowe, ibid. (citing Report presented to the preliminary peace
conference, in Leon Friedman (ed.), The Law of War: A Documentary History,
vol. 1 (New York: Random House, 1972), pp. 842-853-854).
41/
L.C. Green, “Command responsibility in international humanitarianlaw”, Transnational Law and Contemporary Problems, vol. 5, 1995, pp. 319, 320.
42/

Crowe, supra note 39, p. 194.

43/
See generally Anthony D'Amato, “Superior orders vs. command
responsibility”, American Journal of International Law, vol. 80, 1986, p. 604;
The Llandovery Castle case. Judgement in the case of Lieutenants Dithmar
and Boldt, Supreme Court of Leipzig, 16 July 1921. Reprinted in American
Journal of International Law, vol. 16, 1922, p. 708.
44/
See “Complaint” <http://www.peacenet.or.kr/˜jdh/e comfort/library/complaint/comp.htm.
See generally Theodor Meron, “International criminalization of
45/
internal atrocities”, American Journal of International Law, vol. 89, 1995,
p. 554; Filartiga v. Pena-Irala, 630F.2nd876 (United States 2nd Cir. 1980).
46/

Meron, ibid., p. 569.

47/

See Regina v. Finta, 88 C.C.C. 3d.417 (1994).

48/

Ibid.

49/
See also Friedl Weiss, “Time limits for the prosecution of crimes
against international law”, British Yearbook of International Law, vol. 53,
1982, pp. 163, 185.
50/
Fédération nationale des déportés et internés résistants etpatriotes v. Barbie in International Law Review, main report, note 70.

E/CN.4/Sub.2/1998/13
page 60

51/

Oppenheim, supra note 38, sect. 140.

52/

Ibid., sect. 151.

53/

Ibid., sect. 150.

54/
There may be some small number of cases in which the Japanesemilitary cannot be held directly liable for the treatment of women in thethird category of comfort stations. In these cases, the military may,
however, still be held liable under a theory of “vicarious liability”, which
as defined by Oppenheim (ibid., sect. 149) applies to “certain unauthorized
injurious acts of [States'] agents, of their subjects, and even of such aliens
as are for the time living within their territory”.
55/

Kalshoven, supra note 24, p. 9.

56/
See E/CN.4/Sub.2/1996/17; the JBFA (supra note 36, pp. 22-25) has
recognized that these principles impose upon Japan a responsibility to makereparations to the comfort women.
57/
Janes case (United States v. Mexico), United Nations Reports ofInternational Arbitral Awards, vol. 4, 1926, p. 82.
58/

Ibid., p. 82.

59/

Ibid., p. 89.

60/

Views of the Government of Japan, supra note 34, pp. 28-32.

61/

Oppenheim, supra note 38, sects. 1, 7.

62/Kalshoven, supra note 24, p. 11.

63/

Ibid.

64/

Ibid.

65/

Ibid., pp. 12-13.

66/

Ibid., p. 12.

67/

Ibid.

68/
Chorzów Factory (Merits), Permanent Court of International
Justice (PCIJ), Judgement No. 13, Series A, No. 8-17, 1927, p. 29. See
also the van Boven study.
69/

PCIJ Advisory Opinion No. 15, Series B, No. 15, pp. 17-18.

E/CN.4/Sub.2/1998/13
page 61

70/
The agreements with Greece, the United Kingdom, Switzerland,
Sweden and Denmark all include provisions for compensation for personal
injuries, while settlements with Japan's formerly occupied territories
typically make no similar reference. Hsu, supra note 23, pp. 103-104.
71/
Richard B. Lillich and Burns H. Weston, International Claims,
Their Settlement by Lump Sum Agreements. Part II: The Agreements(Charlottesville: Univ. Press of Virginia, 1975), pp. 334, 231, 249.
72/
“Claim for Compensation of Pusan Comfort Women and Women's
Voluntary Labor Corps and Demand for Official Apology to the Women's Voluntary
Labor Corps and to the Comfort Women”, Decision of 27 April 1998 (following
oral arguments of 29 September 1997), Shimonoseki Branch, Yamaguchi District
Court (unofficial translation).
73/

Ibid.

74/

Ibid.

Ibid. See Dan Grunebaum, “WWII sex slaves win historic lawsuit”,
75/
United Press International, 28 April 1998.
76/

Boling, supra note 36, p. 545.

See “Eight Dutch citizens sue Japan over war”, New York Times,
77/
26 January 1994, p. A 9. The plaintiffs include at least one victim of the
comfort stations.
78/
See “Two Chinese wartime sex slaves to testify in court”, Japan
Economic Newswire, 3 July 1996.
79/
See “Japan-based Korean 'comfort women' rape fund scheme”, Asian
Political News, 15 July 1996.
80/

See Dolgopol and Paranjape, main report, note 48.

81/
See “Former 'comfort women' testify in court”, The Daily Yomiuri,
20 July 1996, p. 2.
82/

See Parker and Chew, supra note 5, p. 502.

83/
See Tong Yu, “Reparations for former comfort women of WorldWar II”, Harvard International Law Journal, vol. 36, 1995, pp. 528, 535-536.
84/

See Hsu, supra note 23, p. 118.

85/

See Dolgopol and Paranjape, main report, note 48.

86/

See Hsu, supra note 23, pp. 103-104.

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87/
See Parker and Chew, supra note 5, p. 538; Dolgopol and Paranjape,main report, note 48, pp. 164-165.
88/

See Yu, supra note 83, p. 535.

89/

Asian Women's Fund, supra note 2, p. 1.

90/

See Dolgopol and Paranjape, main report, note 48.

91/

See Parker and Chew, supra note 5, pp. 544-545.

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