In 1897, the Japanese intellectual Uchimura Kanzo1 wrote in an essay entitled "National Repentance":
Repentance is humble acknowledgement of the supremacy of the Eternal Law of Justice, from which no man or nation-not even Japan-can be exempt.... Nothing can buy off the just penalties of sins by whomsoever committed, but contrite and broken hearts. No glories of war can cover up the innocent blood that is shed in connection therewith. The sooner we own our evils as evils, the better.2
In the following century, Uchimura's words had a new relevance for his country. Beginning with its invasion of Manchuria in 1931 and continuing throughout the duration of its involvement in World War II, the Japanese military committed countless wartime atrocities against the peoples of East Asia and the Pacific and against the military forces of the Allied Powers. The record of atrocities included torture, massacres, executions, forced labor, and the razing of entire cities.3 Many of these crimes were prosecuted by the international community after the war at the International Military Tribunal for the Far East (IMTFE) in Tokyo, and at other military tribunals set up by the members of the Allied Powers throughout Asia and the Pacific.4 This paper, however, addresses a crime that, for the most part, was never prosecuted: the subjugation of roughly 200,000 women and girls into a system of sexual slavery, where they were euphemistically referred to as "comfort women."5 In the sixty years that have passed since the conclusion of World War II, the vast majority of the victims of this system of slavery have yet to receive any legal recognition or redress for the wrongs they suffered. In 2000, a group of former "comfort women" filed suit in a United States federal court, seeking monetary damages from the government of Japan for its wartime violations of their rights under international law. Sadly, however, the case of Hwang v. Japan6 soon became one more in the series of legal and political defeats for the "comfort women." Despite the tireless work of legal scholars in articulating the principles of international humanitarian law throughout the twentieth century, the unresolved cases of the "comfort women" make it painfully clear that these principles are still far from being realized.
This note seeks to analyze the reasons for this shameful failure of justice, and in doing so, hopes to shed light on the roles of the international community in upholding international law. Part II lays out the history and background of the "comfort system" and the continuing political and legal battles of its survivors. Part III outlines the case of the "comfort women" from the post-World War II perspective, giving particular consideration to the information available about the "comfort system" and the status of international law at the time. This section concludes that immediately after World War II, the international community had both the facts and the legal arguments necessary to prosecute the crimes committed against the "comfort women." The next part, accordingly, analyzes some of the non-legal reasons for the failure to seek justice, namely, racism, sexism, and international politics. Part V turns to the recent U.S. case of Hwang v. Japan, which is only the most recent illustration of the themes discussed in the previous section. Part VI addresses more recent developments relating to gender-based crimes in international humanitarian law.
II. Background: From the Battlefield to the Courtroom
A. The "Comfort System" in World War II
Much has been written about the history of the Japanese military "comfort system." The term refers to military-controlled brothels, organized by the Japanese government, to serve members of the Japanese armed forces stationed abroad. The first "comfort house" was set up in Shanghai in 1932, a year after the Japanese invasion of Manchuria.7 But it was not until 1937 that Japan began greatly expanding its officially sanctioned and closely regulated "comfort system" for the sexual gratification of the Japanese soldiers as they waged war throughout East Asia and the Pacific. …