The San Francisco ‘Comfort Women’ Statue Controversy: A Microcosm Of The Glaring Inadequacy Of The Response Of The International Community To Wartime Sexual Violence

Hirofumi Yoshimura, the Mayor of Japanese city Osaka, decided last week to cut the six-decade tie of his city with San Francisco after the latter city erected a monument in St. Mary’s Square to recognize ‘comfort women,’ namely those women who were enslaved and forced to work in brothels in Japan during World War II. In justifying his move, he stated that the “relationship of trust” between the cities “was completely destroyed” as a consequence of the establishment of the monument. Such words are in line with prior statements by Japanese officials that they should not be held responsible for common crimes that are committed during circumstances of conflict. For instance, Prime Minister Shinzo Abe professed in 2007 that there is “no evidence” that women were forced to have sex during World War II.

The Mayor of San Francisco Edwin M. Lee has thus far refused to accept the invitation of Yoshimura to meet regarding the issue. The plaque on the monument states that contemporary society should “bear witness to the suffering of hundreds of thousands of women and girls euphemistically called ‘comfort women’, who were enslaved by the Japanese Imperial Armed Forces in 13 countries before the war.”

The Japan Times has acknowledged that some domestic politicians hold the view that Yoshimura’s conduct could damage both the reputation of Osaka and diplomatic relations with other countries. This perspective may not be outlandish, as Japan opposed the decision of the South Korean Parliament to set aside a day of commemoration for comfort women on the 14 August in 2015 which strained relations between the two countries. Subsequent negotiations to resolve deep-seated disagreements over the issue broke down when South Korea refused to take down ‘comfort women’ monuments in Seoul and Busan.

However, the outcry of Japanese officials in relation to such statues and plaques is a microcosm of a broader issue which is that the international community has thus far paid inadequate attention to the problem of wartime sexual violence. Correspondent Sarah Chynoweth reported in The Guardian just last week that she visited war-torn Syria to investigate the predominance of sexual assault and was surprised to hear that the common view was that it was “everywhere,” with notable high rates of commission against men.

Indeed, sexual violence is often perpetrated against men during wartime in order to humiliate and displace populations that have patriarchal gender norms. The Janjaweed paramilitary group forced families of the Fur, Masalit and Zaghawa peoples to watch their own fathers and husbands experience rape during the Darfur Genocide in an effort to emasculate men who were culturally conditioned to be protectors and providers. The moral basis for respect of the status of the human person has been further tarnished in the Eastern region of the Democratic Republic of Congo since the 1990s where men have been beaten in the genitalia region with rifles, viciously raped and forced to have sex with their daughters and mothers. The men are often unwilling to ‘speak out’ about such instances of sexual violence because they risk being ostracised as ‘bush wives’ in a society where there are no anti-discrimination laws in relation to sexual orientation. Accordingly, the Human Security Report (2012) determined that there should be more support services for male survivors of sexual violence in conflict-prone regions especially since they are more likely to suffer depression and commit suicide than women as a result of such circumstances.

The recent Yugoslav Tribunal, which culminated in the suicide of Slobodan Praljak, perhaps also sheds some light on the widespread commission of rape against women that occurred in the conflicts in Yugoslavia in 1993 and 1994. Sexual violence may be used as a social control mechanism for perpetrators to impel fear and terror into victims in accordance with a broader nationalist agenda. The United Nations Security Council Commission of Experts (1994) found that Serb forces systematically sought to non-consensually impregnate Muslim women in eastern and western Bosnia in an effort to ‘ethnically cleanse’ them. Rape camps such as Karaman’s House near Foča were used as concentrated places to methodically sexually abuse women as young as 15 and then sell them as sex slaves. This imposed subjugation of women into conditions of servility by the military forces alienated them from their own localized capacity to define and direct the course of their sexual and reproductive lives.

Perhaps the corrosive nature of wartime sexual violence on the shared human capacity for the vulnerability was most poignant during the Rwandan Genocide of 1994 which resulted in approximately 500,000 women being subjected to sexual violence. Hutu propaganda, for instance, sought to characterize Tutsi women as sexually promiscuous and an affront to the moral values of the nation which compelled many civilians to engage in acts of systematic sexual assault and violence which included the assassination of the first woman Prime Minister Agathe Uwilingiyimana. Hutu extremists let many patients that were suffering from AIDS escape from hospitals and forced them to join ‘rape squads’ in an effort to procure the prolonged and painful death of targeted victims. Tutsi women were also used as sex slaves and suffered sexual mutilation. Survivors of rape were subject to intense stigmatization by their communities which caused them to lose employment opportunities and the ability to own property. Ultimately, rape was systematically used as a ‘weapon’ for the destruction of the entire Tutsi population in a manner that negated the inviolability of their personhood.

To help resolve this issue, the international criminal legal system should impose a greater burden on military leaders and public officials who are responsible for overseeing soldiers that commit sexual violence during wartime. The current legal standard is embodied in Article 28 of the Rome Statute which states that a military commander is only responsible for a crime when they either knew or should have known that it occurred and did not take reasonable measures to prevent it. However, I purport that this standard should be reformed so that there is a presumption that military leaders have knowledge of sexual violence where it occurs even if they did not participate in the acts, order them or were present at the time of their commission. The military leaders would be able to rebut the presumption of knowledge standard if they were able to prove that they took sufficient proactive measures to prevent the commission of sexual violence, such as through the provision of training to soldiers and the development of appropriate monitoring, reporting and investigation procedures. Such an assessment of tangible elements would properly assess individual circumstances, such as available resources, the nature of the conflict and other particularities.

Perhaps some may argue that such a test is too onerous on the basis that the actions of soldiers are beyond the control of a military commander, so it would be unreasonable to attribute responsibility to them. However, I think that there are minimal conditions that represent a threshold for autonomous agency, which includes the ability for one to control processes and procedures that one has direct authority over, such as reporting systems. My proposal thus extends the general principle of command responsibility that was established in the case of Yamashita, where the United States Supreme Court determined that if crimes of sexual violence occur and are widespread then a presumption of knowledge should be imputed onto the military official. In essence, such an imputation recognizes that there is an inherent collective responsibility to prevent wartime sexual violence which should be placed upon those with either de jure or de facto authority over a relevant situation, although individual circumstances should certainly be taken into account in exonerating or mitigating culpability.

Michael Murdocca