Thursday, May 24, 2018

Caroline Joan (Kay) S. Picart

For Complete Article See, Caroline Joan (Kay) S. Picart, Attempting to Go Beyond Forgetting: the Legacy of the Tokyo Imt and Crimes of Violence Against Women, 7 East Asia Law Review 1 (2012) (317 Footnotes).


[I] f the dead from [the Rape of] Nanking were to link hands, they would stretch from Nanking to the city of Hanchow, spanning a distance of some two hundred miles. Their blood would weigh twelve hundred tons, and their bodies would fill twenty-five hundred railroad cars. Stacked on top of each other, these bodies would reach the height of a seventy-four-story building.


Caroline Joan PicartThere is no dearth of images representing the Holocaust; in fact, images from the Holocaust have become so ubiquitous that they have achieved the status of a form of visual rhetoric--a call to action against gross human rights violations. Unlike the Nuremberg International Military Tribunal (Nuremberg IMT), which has been iconized and epideictically represented through Hollywood movies and television mini-series, the International Military Tribunal for the Far East (hereinafter, the Tokyo IMT) has left comparatively few traces, both in historical and legal texts, and in popular culture.

Marita Sturken remarks:

The process of history making is highly complex, one that takes place in the United States through a variety of cultural arenas, including the media, Hollywood narrative films, and museums in addition to the academy. That means that memories, artifacts, images and events often get marked as historical without the aid of historians.

Even historical films that have the look of authenticity, such as Spielberg's Schindler's List, appropriate narrative techniques derived from horror such as Hitchcock's shower scene from Psycho, and exploit the stock characters of the hyperfeminized, vulnerable Jewess and the hypermasculinized monstrous Nazi male officer. Such commodification of suffering may be understood as a part of the complex, non-linear process of collectively attempting to work through, or come to terms with, the trauma of the Holocaust. Yet when traces of memory have been suppressed, as if in a collectively agreed-upon amnesia, as they have been, in the case of the Tokyo IMT, it is more difficult to work through that trauma. This is an attempt to work through the legacy of the Tokyo IMT, which has usually been either conflated with, or dismissed as simply corollary to, the Nuremberg IMT--a mistake that has far-reaching consequences, both legally and politically.

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IV. The Tokyo Imt's Legacy of Forgetting Crimes of Violence Against Women

A. Visualizing and Obliterating the Rape of Nanking

At the Tokyo Trial, atrocities committed by the Japanese were revealed through a variety of sources: news reports, surveys, statistics, and witness testimony. The Tokyo IMT unearthed a pantheon of horrible new ways of torturing human beings:

[O] f marches (such as the infamous Bataan Death March) in which gravely ill and starved prisoners dropped dead from exhaustion, of the savage conditions behind the construction of the Siam-Burma Death Railway, of the Japanese water treatment that pumped water or kerosene into the noses and mouths of victims until their bowels ruptured, of suspension of POWs by wrists, arms or legs until their joints were literally ripped from their sockets, of victims being forced to kneel on sharp instruments, of excruciating extractions of nails from fingers, of electric shock torture, of naked women forced to sit on charcoal stoves, of every imaginable form of beating and flogging ... even of vivisection and cannibalism.

Chang claims that empirical studies show that the Japanese surpassed the Nazis in their cruelty towards captives: only one in twenty-five American POWs died under Nazi captivity, in contrast to one in three under the Japanese.

Yet the chief metaphor for Japanese atrocities, at the Tokyo IMT, was the Rape of Nanking. Chang passionately argues for the uniqueness of the brutality of Rape of Nanking, not only for the sheer number of deaths, but also for the cruelty with which the deaths were executed.

[W] hether we use the most conservative number--260,000--or the highest-- 350,000--it is shocking to contemplate that the deaths at Nanking far exceeded the deaths from the American raids on Tokyo (an estimated 80,000-120,000 deaths) and even the combined death toll of the two atomic blasts at Hiroshima and Nagasaki by the end of 1945 (estimated at 140,000 and 70,000 respectively).


Chinese men were used for bayonet practice and in decapitation contests. An estimated 20,000-80,000 Chinese women were raped. Many soldiers went beyond rape to disembowel women, slice off their breasts, nail them alive to walls. Fathers were forced to rape their daughters, and sons their mothers, as other family members watched. Not only did live burials, castration, the carving of organs and the roasting of people become routine, but more diabolical tortures were practiced, such as hanging people by their tongues on iron hooks or burying people to their waists and watching them get torn apart by German shepherds. So sickening was the spectacle that even the Nazis in the city were horrified, one proclaiming the massacre to be the work of bestial machinery.

The Tokyo IMT unequivocally denounced the Rape of Nanking, citing it as an instance of clear government policy, sanctioned by the highest levels of government (except for the Emperor), which were informed of the developments, and even celebrated the atrocities in Japan, before international condemnation set in. Chang claims in commemoration of the victory over Nanking, special Nanking noodles were prepared in Tokyo; Japanese children proudly carried globe-shaped, candle-lit paper lanterns in evening parades to symbolize Japanese ascendancy; photos of the atrocities committed were proudly heralded. It was only after news of international outrage (interestingly, more about the bombing and sinking of the U.S.S. Panay, an American gunship, than all the slaughter, rape, and torture) broke out that the Japanese government sought to exert damage control by concealing the extent and nature of the atrocities committed, and to replace the shocking news with propaganda.

The Rape of Nanking unfolded in the international spotlight. Months before, and during the actual siege, media correspondents provided vivid, up-to-date coverage of the events. The three American journalists most influential in forming public opinion were New York Times reporter, Frank Tillman Durdin; Chicago Daily News' Archibald Steele; and the Associated Press' C. Yates McDaniel. All three men were not only instrumental to writing riveting stories about the events, but also became actively involved in saving Chinese lives and retrieving body parts of relatives whom the Japanese had murdered. In addition, Universal Studios' Norman Alley and Fox Movietone's Eric Mayell happened to be on board the ill-fated U.S.S. Panay, and managed to squirrel away footage of the action; the film was initially buried in mud, and later retrieved and played in theaters across the United States. Furthermore, not only had the events occurred in full view of the Japanese Embassy in Nanking, but also, the International Committee had visited the Japanese Foreign Office and the Japanese Embassy, to file reports, and even purportedly filing two protests a day for the first six weeks of the Nanking Occupation.

Given the extent of the coverage, it is difficult to believe that the Japanese Emperor and the royal family were completely unaware of the extent and brutal nature of the slaughter. Nevertheless, Matsui Iwane, the commander of Japan's Central China Expeditionary Force, assumed complete responsibility for the Nanking atrocities. Chang conjectures that the tubercular, sickly and frail Matsui had simply been a (willing) scapegoat as he was not even in Nanking when the city fell into Japanese hands. Furthermore, Matsui's testimony, at the Tokyo IMT had significant gaps, and was contradictory. [H] e waffled between lies and occasional self-denunciation. He tried to make excuses ... sometimes denied [the atrocities] completely ... and [engaged in] ... circuitous, vaguely mystical discussions about Buddhism and the nature of Sino-Japanese friendship. In addition, the self-flagellating Matsui erected, in his hometown of Atami, close to Tokyo, a shrine of remorse--a statue of Kannon, Buddhist Goddess of Mercy, sculpted from clay imported from the Yangtze River mingled with Japanese soil. To atone further, the Matsui family hired a priestess to chant prayers and weep for the dead Chinese. Nevertheless, Matsui never pointed a finger at the royal family, saying only that the tragedy occurred because of his failure to guide Prince Asaka and the Emperor, and that it was his duty to die for them.

Despite the strong indirect proof that the royal family most likely was aware of, and sanctioned, the brutalities committed by the Japanese military in Nanking, both Prince Asaka and Emperor Hirohito never spent a day in jail, and lived on to enjoy lives of leisure and national adoration. Another shameful legacy of the Tokyo IMT is that whereas many of the Japanese torturers were awarded full military pensions and benefits from the Japanese government, thousands of their victims suffered (and continue to suffer) lives of silent poverty, shame, or chronic physical and mental pain. That relegation to silence has been described as a second rape, not by Japan, but by the colluding Allied powers.

B. Attempting to Obliterate Traces of Comfort Stations and Comfort Women

If the Nazis systematized the extermination of Jews through gas chambers, the Japanese systematized the rape and sexual slavery of women in territories occupied by the Japanese between 1930-1945 through comfort stations. These women were sometimes listed as war supplies; in other accounts, they were referred to as girl armies, which is appropriate, as 80% of the reported Korean comfort women were between fourteen to eighteen years old. The statistical data, gathered through hotlines set up in 1992 to gather data on these military barracks of sexual slavery, conjures up an efficient and vast machinery for shipping women, under the jurisdiction and supervision of Japan's Ministry of War, comparable to the Nazi bureaucracy of sending Jews to death camps:

Among the Tokyo callers, who were the most numerous, 79 referred to comfort stations in China, 56 to Manchuria, 36 to Southeast Asia, 22 to the Western Pacific, 23 to Japan and 6 to Korea. In Kyoto, 65 callers referred to China, ... 4 to Korea, 2 to New Guinea, ... 4 to ... [Indonesia] , 8 to the Philippines, 3 to Burma and 2 each to Malaya, Thailand, French Indochina, Japan and Taiwan ....

The wide range of nationalities represented in the girl army showed how ruthlessly and systematically women of all nationalities who came under Japanese control were duped, abducted or violently forced to become sex slaves: Korean, Taiwanese, Manchus (meaning non-Chinese ethnic groups), mainland Chinese, Indonesians, Vietnamese, Filipinas, Dutch, Burmese, Malays, White Russians (in Manchuria), Thai, and also, interestingly, Japanese. In addition, the ratio of troops to comfort women is staggering, and reveals an estimate of the total enslaved population. The ideal ratio (of troops to comfort women) would have been 29:1 (meaning each soldier would have access to sex every day), but the actual ratio, based on studies, is closer to 50:1, leading to the following calculation: If we assume a ratio of 50:1, then the total of some 7 million troops from all theatres of war indicates that there would have been about 139,000 comfort women at most.

One justification for the creation of these barracks of sexual slavery was that it would theoretically prevent the Japanese army from engaging in an unmitigated spree of rapes, as had happened at Nanking. Sadly, the establishment of the comfort stations did not stop rape in any of the occupied territories. Not only did the creation of the comfort stations engender an officially sanctioned system of sexual violence; in addition, it also strengthened a culture of permissiveness, because punishments for rape remained lenient in the Japanese Army Penal Code. Looting, combined with rape, though, was another matter, as the punishment for the combined offense, according to Paragraph Two, Article 86 of the Army Penal Code: at least seven years of penal servitude and at most lifetime imprisonment. To escape the combined charge, rapists simply killed their victims, and military commanders looked the other way, viewing rape as a means for building troop morale.

The other goal, in building comfort stations, was to prevent Japanese soldiers from becoming infected with sexually transmitted diseases, knowing that soldiers used sex as a release from the stress and trauma of war; even more importantly, if the infected soldiers returned home and spread the diseases in their home country, a health pandemic would emerge. As a small sample of the problem, the number of soldiers of the 19th and 20th Divisions of the North China Area Army, who had contracted sexually transmitted diseases came to 985. To stem the tide of diseases, the military banned the use of civilian prostitutes and gave strict and detailed instructions on the best way to avail of the comfort stations, including an injunction presuming that every comfort woman is a carrier of sexually transmitted diseases. Thus, elaborate instructions were issued, which included checking for the woman's health papers (proving she had recently been inspected for sexually transmitted diseases); making the woman wash before sex; always using a condom and a disinfecting lubricant; disinfecting immediately after intercourse; stopping by the medical office for treatment especially with signs of early infection, among others. Given the complexity of these instructions, it is highly doubtful that the soldiers actually followed them, and thus, it is hardly surprising that instead of decreasing the spread of sexually transmitted diseases, ironically, the comfort stations actually facilitated the spread of these diseases.

Nevertheless, there is evidence that the Japanese government very deliberately designed the comfort stations to fit into loopholes in international law, prohibiting the trafficking in women and girls. There were four international treaties in force at that time: (i) The International Agreement for the Suppression of White Slave Traffic (1904), (ii) The International Convention for the Suppression of White Slave Traffic (1910), (iii) The International Convention for the Suppression of Traffic in Women and Children (1921), and (iv) The International Convention for the Suppression of Traffic in Adult Women and Girls (1933). Although Japan did not sign the 1933 treaty, by 1925 it was a signatory to the other three, all of which outlawed the prostitution of underage girls, even with their consent, and rendered criminal the use of violence, compulsion, or fraud in forcing a woman of age to become a prostitute. However, there was a major loophole in the three treaties: they exempted colonies from their prohibitions. For example, Article 11 of the 1910 treaty presumed in the absence of a writing to the contrary that none of the treaty's prohibitions applied to signatories' colonies. Similarly, Article 14 of the 1921 treaty allowed signatories to declare their colonies exempt from treaty provisions.

Given these loopholes, the Japanese government considered Korea, Taiwan, China, Southeast Asia and the Pacific Region--all occupied territories, and therefore colonies--as exempt from prohibitions against the trafficking and prostitution of girls. That to some extent explains the proliferation of comfort stations in the occupied territories, especially in Korea. The Japanese tried to prevent the occupied territories from uniting in rebellion, and exploited regional tensions to maintain control. Korea, unlike Taiwan, was historically antagonistic to China, and its population easier to isolate. As a consequence of cultural prejudices and Japanese exploitation of regional tensions, Korean women suffered more than most. In terms of ethnic status, in the eyes of the Japanese, they were desirable because they ranked as most akin and were second only to Japanese and Okinawan women. After them in the pecking order came the Chinese, and lastly Southeast Asians, who were darker-skinned and thus not as desirable. Finally, because Japan never ratified the 1933 treaty, which explicitly prohibited rounding up women and forcing them to become prostitutes, even with the woman's consent, it could technically claim that it had broken no international laws. However, given the already existing widespread international consensus regarding the prohibition, embodied in treaties, it could be argued that Japan flagrantly violated an effectively existing international custom.

Ultimately, the Japanese military was just as guilty as the Nazis were of crimes against humanity--defined by the Nuremberg IMT as murders, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, as well as persecutions on political or racial grounds. However, at the Tokyo IMT, not even one person was tried for crimes against humanity. The reasons for why Japan was not prosecuted for its sexual enslavement of women in its occupied territories, among other crimes, are manifold. Not only were rape victims reluctant to come forward because of shame, but also Japan, the Allied powers and even other Asian nations colluded, to render these crimes resolved through a political solution.

Eager to attract or maintain Japanese development aid and investment, the postwar governments of Asian nations colonized or occupied by Japan during the war have often been reluctant to press issues of Japan's responsibilities to its victims. Not only the Japanese but other Asian governments as well would just as soon forget, for different but complementary reasons, that comfort women ever existed.

Nuancing what appears, from the view of historical distance, to be an unproblematic blanket of collusion, Yuma Totani argues that the Allied prosecutors--and in particular, the Dutch member--substantiated the Japanese commission of various forms of sexual violence including sexual slavery, targeted ... at the Asian female population. Repeatedly, Totani points to documentary traces of the prosecution's attention (or at least non-dismissal) of sexual violence perpetrated against Asian women. For example, rape and other acts of physical abuse were among the fifteen general patterns of Japanese war crimes appended to the indictment; in addition, during the trial, the prosecutors supplied additional evidence about other types of war crimes, implied in but not specifically identified in the indictment, such as civilian-targeted atrocities, including deportation and use of numerous Asian civilians as slave laborers. Nevertheless, Totani does point out that this extensive documentation did not cover the Korean and Taiwanese comfort women, but instead focused on military sexual slavery targeted to women of enemy nationalities, such as Chinese, Dutch, Indonesian and Vietnamese women. Although she does not develop the idea, Totani points to the liminal status of Koreans and Taiwanese--from the perspective of the Allied forces, they were both victims (forced to serve the Japanese) and victimizers (who had assisted in Japan's aggression and atrocities), unlike the other Asian nationalities, who were clearly regarded as enemies of Japan. Ultimately she arrives at the same conclusion: As history shows, Allied prosecutors did not explore th[e] possibility [of prosecuting this systematic sexualized violence against women in the Japanese colonies] and ultimately failed to hold Japanese leaders accountable for organized sexual slavery.She concurs that this unfortunate omission can be validly considered as one major historical shortcoming of the Tokyo Trial.


Although this article focused initially on the historical, political, and legal dimensions of the papering over of Japan's wartime crimes of violence against women, cultural dimensions are also part of the picture. For example, Japanese soldiers widely believed that sex before battle provided a charm against injury. Thus, soldiers wore amulets made from the pubic hairs or from the possessions of comfort women. Conversely, sexual deprivation was believed to make one accident-prone, probably because of the lack of stress-relief, given the savage training the Japanese military underwent. And since an army's strength is no greater than that of its weakest link, there was a great deal of pressure for soldiers to visit comfort stations; men who resisted were forced by their own comrades. The soldiers' favorite victims were hua gu niang --young girls--because virgins were supposed to provide particularly potent protection. Yet as the Nanking Massacre shows, all women (and even men) were targeted for rape: women in their eighties were not spared, pregnant women about to go into labor were violated and their fetuses slashed from their wombs for amusement, preteen girls had their vaginas slashed to rape them more effectively, and fathers and husbands were forced to witness the rapes of their kin before being forced to rape them as well and then finally killed. As one Japanese psychiatrist, First Lieutenant Hayao Torao noted, in his report on Phenomena Particular to the Battlefield and Policies Toward Them, and in specific on Sexual Desire and Rape: Because the idea that [soldiers] are free to do things to enemy women that would never be permitted at home is extremely widely held, when they see young Chinese women, they are drawn to them as if possessed.

Of course, a phenomenon as complex as the Japanese comfort stations is not reducible to a simple excuse for unmitigated Japan bashing. For example, the Japanese simply exploited pre-existing gender and class discrimination within Korean society to target young, poor women. Nor were all relationships between the Japanese soldiers and their girl army necessarily completely devoid of tenderness, or sometimes even real concern. And the Japanese were not unique, in their use of prostitution, as a way to relieve the psychological pressures of war and strengthen troop morale.

As the rape centers set up by Serbian forces during the Yugoslavian civil war demonstrate, rape as a military weapon and as a means of subjugation remains viable and is not a World War II relic. Although the International Criminal Tribunals for the former Yugoslavia and for Rwanda have successfully indicted numerous individuals on charges of torture and genocide for crimes that entail sexual violence against women, and the statutes of the International Criminal Court (ICC) clearly outline rape and sexual slavery as crimes against humanity, these courts have jurisdiction only over crimes post-dating the Rome Treaty's signing in July 1998. Former comfort women, and other victims of imperial Japan, therefore have no international legal recourse against their victimizers or against the Japanese government, given Japan's recalcitrant denial of any wrongdoing save for a public apology, issued in July 1992. Although comfort stations' survivors have engaged in an activism that has raised an awareness concerning systematic rape and sexual slavery during armed conflict, these former comfort women have yet to receive a yen of compensation from the Japanese government. Particularly given the virulent racism with which the Japanese were portrayed during World War II, it is surprising how easily that collective animosity became effaced, replaced by a diplomatic final solution, dressed in legal trappings. Although forgetting is often part of the process of working through trauma, in the case of the Tokyo IMT, an artificially imposed collective amnesia simply worked, ironically, to generate even more complex mechanisms of denial and guilt, in the Japanese, and thus, as a corollary, a problematic heritage of shame and denunciation, for the Tokyo IMT.

About the Author: Caroline Joan (Kay) S. Picart is a J.D. Candidate (2012) at the University of Florida Levin College of Law and Adjunct Assistant Professor of Humanities at Santa Fe College. Prior to law school, she was an Associate Professor of English and Humanities at the Florida State University with a Courtesy Appointment at the Florida State University College of Law.

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