The Need for a Reparations Insurance Fund for Women: the case of the Japanese “comfort women” and the Bosniak women

War reminds us that we humans are still barbarians.  During World War II, over 200,000 “comfort women” were enslaved and raped by Japanese troops.[1] More recently, in the early nineties, 50,000 Bosniak women were enslaved and raped by Serb forces.[2]  And not forgetting the Holocaust, where many Jews were enslaved and forced to work in sub-human conditions. The horrid reality of war, as exemplified by the horrific experiences of the comfort women, the Bosniak women and the enslaved Jews, has been well documented and aired in the international arena.  These disturbing examples have engendered outrage and sympathy, and the realization that humankind is in need of some mechanism to assuage our primal barbaric tendencies.  The evolution of reparations, as a body of law, seeks to restore mankind to a more civilized state. Albeit after the fact, reparations attempt to right the wrong done by the beast.

Given the extremity of the plight of each of the victims of these heinous crimes, one would expect the redress offered to them, while peculiar to their circumstances, to be in essence of a similar nature.  Yet, the international legal response afforded to these different groups of victims has been anything but consistent, and raises doubts about the purpose and legitimacy of international law.  Specifically, the enslaved and tortured Holocaust survivors have managed to secure apologies, formal admissions of guilt, and monetary compensation for their horrific ordeal.  The raped and tortured women have not been so lucky.  In the case of the comfort women, token financial compensation has been offered, but without formal apology or any legal attribution of guilt to Japan.  On the other hand, the Bosniak women have secured formal recognition of their systematic rape, with legal pronouncements from international and U.S. courts attesting to the liability of individual perpetrators such as Radovan Karadzic.[3]  Despite this progress, the Bosniak women are still struggling to find a “culprit” capable of paying the financial compensation owed to them for their horrific ordeal.   Given the flourishing jurisprudence on reparations, and the proliferation of international legal institutions, this is a sorry state of affairs.

This paper considers the capacity for reparation claims by individuals or groups of victims in the international legal arena where traditionally non-state actors must appeal to their governments to take up their cause.  Where there is no political will for their own government to take up their cause, where does this leave the injured victims?  The paper considers the plight of the comfort women and the Bosniak women subjected to rape and sexual torture in recent wars.  Reparations, as a class of damages, in theory, centers around vindicating victim’s rights.  However, in practice, the impetus for making reparations is rarely connected to considerations for the victims.  Instead, reparations made are motivated by geopolitical considerations, and will only benefit the victims as a class, where the injured group’s expectations can be aligned with the political pressure exerted on the perpetrator’s nation.  I will discuss the politics and biases that have resulted in the non-payment of reparations to the comfort women and the Bosniak women. These unjust outcomes highlight the inadequacies in domestic politics, and international law and international institutions, suggesting the need for safeguards to be put in place where international reparations law fails to properly address victims’ rights.

The paper is structured as follows: it 1) defines the notion of reparations at law, 2) considers the comfort women and Japan’s non-efforts in providing reparations, 3) discusses the rape of the Bosniak women and their attempts at securing reparations, 4) notes that in both cases, the women victims are unlikely to succeed in securing adequate reparations.  Finally, I conclude with the argument for a reparations insurance fund for women.

[1] McDougall 1998: Appendix

[2] Warburton Mission II Report: paragraph 14

[3] See Kadic v Karadzic 1996