THIS IS not about the debate on purloined text and footnotes that found their way into a Supreme Court decision, and that has been picked up by bloggers abroad and by Prof. Evan Criddle, one of the affected authors who lamented that his writing had been lifted out of context to produce an opposite conclusion.
Rather this is about the larger legal issues that international lawyers have raised to help the Korean, Chinese, Filipino and other comfort women. The first is what exactly is the crime that was committed against them. The second is whether that crime rises to the level of what is called a “jus cogens” norm, a principle so powerful that it will trump and nullify incompatible treaty obligations.
The common perception is that the only crime we are talking about is rape. Yes, the comfort women endured rape—every day, 30 times a day, over months if not years of captivity. That is why various United Nations rapporteurs have made authoritative findings that the crime committed included much more. Remember that the women were typically kidnapped at gun point, kept in detention to “service” the Japanese army, and forced into having sex several times each day, often accompanied by beatings and sometimes contamination with sexually transmitted diseases.
We are not talking about some episodes of unconsented sex. We are talking about sustained and systematic abuse and debasement on a daily basis over months, if not years, of captivity. The UN rapporteurs have listed the following crimes: sexual violence; slavery, including sexual slavery and forced prostitution; crimes against humanity (that is to say, the widespread and systematic enslavement of civilian populations); and cruel, inhuman and degrading treatment.
How we name the crime determines whether we could ascribe to it the status of jus cogens. Take for example the strongest possible jus cogens principle, namely, the global prohibition on slavery. Yet to call the comfort women's ordeal slavery—some of the victims' advocates argued—puts their daily rape on the same footing as, say, the forced labor of soldiers conscripted to build roads and bridges. It fails to capture the intimate nature of the breach, one that goes into heart of the woman's intrinsic human dignity. But to call it by some other name might dilute the jus cogens nature of the crime, and weaken the claim.
The character of the prohibition as a jus cogens norm is important, because it will in turn affect the validity of the supposed waiver of all Philippine claims under the instrument of surrender of Japan, the San Francisco Peace Pact. It is true that we agreed to waive our claims against Japan in exchange for war reparations. Yet all that time the Japanese government had denied the existence of the comfort stations, and admitted to it only belatedly. Indeed, the “onsite military brothels” were not included in the indictments before the International Military Tribunal for the Far East, more famously known as the Tokyo War Crimes Tribunal. How could we have waived a claim everyone said at that time did not exist?
Beyond that, the importance of the jus cogens argument is that the supposed waiver is thus invalid. That is the point precisely of characterizing a norm as of jus cogens character, which would mean that treaty obligations must yield and bend. One purpose of the doctrine is precisely to protect weak and vulnerable parties from bargaining away their claims in treaties, by affirming certain fundamental norms or prohibitions as non-negotiable and non-derogable.
Perhaps the Philippine government—and here I mean the Executive Branch—should recognize its duty to vindicate the humanitarian claims of its own citizens. It has enough legal ammunition to stand up for its citizens. It has signed the full range of human rights and humanitarian law treaties that set forth its obligation to protect and promote the rights guaranteed therein.
After our 1986 People Power uprising and after Cory Aquino ratified one human rights treaty after another, our country was seen as a key human rights constituency in Asia. Unfortunately, we have recently gone soft on that commitment.
Gloria Macapagal-Arroyo's recent sordid human rights record has certainly sullied our human rights street creds. Our record of looking the other way on intra-Asean human rights cases, as in the case of Burma, and in the watered-down Asean Intergovernmental Commission for Human Rights has not helped our reputation as a human rights capital in our part of the world.
Fortunately, President Aquino has now stepped forward and signaled a renewed commitment to human rights domestically by appointing the former Human Rights Commission chief as secretary of justice, and internationally by offering to host the headquarters of the Asean human rights office. All those initiatives will be lost on our people and on the world if we weasel out of our obligations to the remaining lolas, the survivors of the comfort women ordeal. They had to wait several decades before they could go public and until then had to bear their pain in silence.
What kind of a nation are we to deny them our nurturing and care? What kind of lawyers are we if, instead of laying the groundwork to give them justice, we seek ways to evade that duty and find every nice legal excuse to look the other way? No, the waiver couldn't have included claims arising from non-negotiable prohibitions of international law. It couldn't have included claims arising from facts either unknown or unconfirmed at the time. There remains a live and valid claim, and we better assert it soon before the claimants die of sickness or old age.