Issues | LAW OF THE LAND

Never mind the facts — logic alone demolishes 'comfort women' deniers' case

by Colin P.A. Jones

Having decided early that I was likely to eat better as a lawyer than a historian, I had planned on sitting out the latest incarnation of the “comfort women” debate. Yet some of the arguments made by deniers of Japanese military involvement in wartime sexual slavery are so ridiculous that I thought they merited a slightly belated column, in part because they are relevant to how things sometimes still work in Japan today.

Comfort women were rounded up from Korea and elsewhere and put to work as sex slaves for the Japanese military. Deniers accept that serving the sexual needs of Emperor Hirohito’s soldiers was a serious logistic issue, and rightly point out that this was the case for other combatant nations as well. However, describing the women as having been coerced is to them a terrible calumny upon Japan’s honor, as is referring to them as “sex slaves.” In their version of events, comfort women responded to advertisements and worked as prostitutes at a time when the practice was perfectly legal. They did the job willingly and were paid for their efforts.

Rather than rehash old ground, let us ignore the numerous first-person accounts of women claiming to have actually been comfort women, as well as the findings of a number of historical researchers. Nor need we bother to mention an entire subset of war-crime tribunals arising from the sexual enslavement of female Dutch civilians interned when Japan conquered what is now Indonesia. Finally, we must resist the urge to cite past admissions of culpability by Japan’s own postwar government, including involvement in the establishment of a compensation fund and apologies by past Japanese prime ministers. According to the Deniers, these are all the result of a terrible misunderstanding caused by the shoddy yet inexplicably influential journalism of one reporter at the Asahi Shimbun.

You don’t need anything more than the central Denier argument — that comfort women were just willing prostitutes earning an honest wage exchanging services for payment — to appreciate how contextually ridiculous it is. Why? Because it hangs on the premise that these women were among an apparently privileged minority of people in Japan’s Greater East Asian Co-Prosperity Sphere who weren’t being forced to do things against their will as part of the war effort.

The list of people not so favored would be long indeed. It would start with the war-weary soldiers the comfort women serviced, most of whom were conscripts. Next would be Imperial subjects (including schoolchildren) in Japan and its colonial possessions put on a total war footing by the National Mobilization Act of 1938 and subject to compulsory labor under the National Service Draft Ordinance. Then would come the Korean men forcibly brought to Japan as laborers, not to mention the countless other people in the parts of Asia occupied by the Japanese military forced to provide work and materials to assist the war effort.

As for the comfort women being paid, even if that was true in every single instance (a giant if!), so what? Japanese conscripts were paid too, but it didn’t make their participation in the war and the suffering they endured any more “voluntary.” Even allied POWs forced to work in brutal conditions at gunpoint were theoretically being paid for their labors — that was a requirement of the 1929 Geneva Convention on the Treatment of Prisoners of War, which Japan did not ratify but made a “qualified promise” to follow. Payment doesn’t make it any less accurate to characterize them as having been used as “slave labor” or subjected to “torture” comprising war crimes.

Oh, and under the Geneva Convention, POWs who were officers did not have to perform manual labor unless they volunteered. Guess what: A lot “volunteered,” though beatings and bayonets may have encouraged them to do so in many instances.

You see, the Denier argument involves an almost willful blindness to how much scope there is for coercion in a wartime environment dominated by stressed-out men carrying lethal weapons who have devoted themselves to the task of killing other people.

It also demonstrates an impressive degree of ignorance as to how human trafficking — and thus a lot of prostitution — works even in peacetime, with either some form of coercion or, at the very least, calculated deceit being used to get women on trains, planes or boats “voluntarily” to wherever the brothel is located. According to a 2007 U.S. Congressional Research Report, “the evidence points to deception as a common practice of military and military contractor procurers.”

Insistence by Deniers that comfort women all willingly submitted to their roles deserves attention because the fiction of consent still looms large in the shadows of Japan’s famous social order and supposed love of harmony. I like not fighting with my neighbors and gunshot-free school zones as much as the next guy, but if you have spent any time in Japan, you have likely become accustomed to hearing explanations like “It has been decided” or “That’s how things work.” In other words, you and everyone else are supposed to voluntarily follow a rule without understanding who made it or why.

The same dynamic exists in more formal situations as well. Oxymoronically, mandatory “agreements” are the basis for how NHK fees are collected. Coerced consent also features in the criminal justice system: You “voluntarily” accompany a cop to the station where you stay “voluntarily” until you “voluntarily” make a confession that is the basis for arresting you and detaining you further until you “voluntarily” sign a more detailed confession suitable for convicting you in court. By the time you get before the judge, the burden is on you to prove your innocence — i.e., that your confession was coerced.

Fictional consent is the oil that keeps the wheels of justice moving smoothly. The civil and family justice systems feature a more subtle version of coerced consent, with judges sometimes encouraging settlement by threatening to rule against parties or write unfavorable findings of facts, regardless of the merits of their claims.

Japanese family law, too, assumes that most marriages and adoptive relationships are formed through the free will of the parties, but lacks significant procedures for confirming that the consent of both parties is real, or protections for parties with unequal bargaining power. In fact, Japan may be one of the minority of countries where you can discover that you have married or adopted someone without even knowing it through the magic of fraudulent family-registry filings.

Then there is the term shinjū or “joint suicide,” which assumes that lovers or family members found dead all died of their own free will rather than some of them having been murdered (sometimes the oxymoronic muri shinjū, or “forced joint suicide,” is used).

Phony assent also features in the Japanese economy in practices such as sābisu zangyō, the supposedly voluntary unpaid overtime that Japan’s salarymen are famous for enduring, not to mention gyōsei shidō (administrative guidance), by which industries “willingly” submit to mandates from governmental authorities that have no basis in law and have occasionally bordered on criminal solicitation. The ridiculous fiction that borrowers “voluntarily” paid interest above statutory usury caps enabled loan sharks to enjoy massive profits until the Supreme Court put a stop to the farce a decade ago.

Even the seemingly innocuous use of hanko (seals) to execute documents allows government agencies and businesses to assume the person whose seal has been affixed is agreeing to the transaction without bothering to confirm the reality of the consent or even the identity of the person wielding it. Until international money-laundering regulations forced Japanese financial institutions to confirm the identity of those conducting banking transactions, they were pretty much free to rely on possession of a bank book and seal as evidence of the account holder’s consent to whatever happened to the money.

While convenient, these systems of fictional or assumed consent also make it easier for the strong to prey on the weak. More importantly, however, they absolve the authorities who operate them of responsibility for the results.

This brings us to another Denier claim: that Japanese military or civil authorities were not directly involved in whatever “systems” were developed for sexually satisfying Japanese troops. While we might be tempted to refer again to the Congressional Research Service findings that “the evidence describes the involvement of the Japanese military at all stages in the operation of the system,” we can address this argument at face value too because it is simply vacuous. When it comes to government, the difference between having a system and not is irrelevant to the people who suffer as a result.

Furthermore, “nongovernmental system” systems are an obvious part of daily life in Japan. The Japanese government has no system for regulating slot machine gambling or prostitution because both are illegal. Yet the nation has plenty of slot machines and sex workers and heavy police involvement in the existence (or if you prefer, “nonexistence”) of both. It would also be true to say that there is no system for coercing confessions because, well, that would be unconstitutional. Nonetheless, it sure seems to happen with disturbing frequency.

Returning to our historical context, it would also be technically correct to say that Japanese soldiers never systematically used Chinese POWs for bayonet practice because there were no such things as Chinese prisoner of “war,” at least not until Chiang Kai-shek’s Nationalist government formally declared war on Japan on Dec. 9, 1941 — four years after the Marco Polo Bridge Incident served as a pretext for armed intervention on the Chinese mainland. The conflict not being a “war” in legal terms, the Japanese military never put in place systems for looking after Chinese prisoners, leaving them as burdensome “enemy combatants” to be dealt with by the combat units that captured them in the first place.

Whether there were “systems” in place is irrelevant to whether unarmed Chinese prisoners died violent premature deaths or helpless women were forcibly penetrated by Japanese soldiers. These were all intentional acts that caused harm for which people can be held responsible because they were part of a larger tragedy: Japanese military aggression and all that sprang from it. Here is where the Denier arguments are at their most facile, because they seem to assume that Japan’s war was some sort of natural disaster for which nobody was responsible. Yet identifiable responsibility is arguably one of the most important features of civil society, particularly the responsibility of people who govern and wield the power to harm.

For the reflexively-defensive-of-Japan, I will close by noting that with my own country of birth having just disclosed how it “tortured some folks” a shameful six decades after war-crimes tribunals convicted Japanese military men for torturing POWs and murdering civilians, there may well be no moral high ground left to squabble over (if there ever was any in the first place). Perhaps honest debate may be the only thing left for any of us to aspire to in the post-Obama age.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. Law of the Land appears in print on the second Thursday Community Page of every month. Comments: community@japantimes.co.jp

GET THE BEST OF THE JAPAN TIMES
IN FIVE EASY PIECES WITH TAKE 5