The following op-ed, Japan's Uncomfortable History, co-written by HLS Assistant Professor Jeannie Suk and NYU School of Law Professor Noah Feldman, was published in The Wall Street Journal on March 13, 2007.
Japanese Prime Minister Shinzo Abe has reopened old wounds in Asia with his defense of Japan's participation in sex slavery during World War II. But this is much more than a debate over history. The past is never dead in Asia. To borrow from Faulkner: It's not even past.
Mr. Abe's words are likely to breed further mistrust in neighboring China and South Korea, which have long accused Tokyo of whitewashing history. Moreover, Japan needs to confront its own past as it decides the kind of nation it wants to be. After some 60 years of constitutionally mandated pacifism in which Japan's military activity has been largely limited to "self-defense," Tokyo is considering amending the constitution to play a more assertive security role. But making such a momentous decision requires an open discussion about why that provision is there. When the U.S. amended its constitution to abolish slavery, for example, it had to admit that it had slavery in the first place.
Mr. Abe's position is actually a step back. In 1993, Japan offered an acknowledgment of complicity and an apology to so-called "comfort women" from various parts of Asia who were forced into brothels to be raped by Japanese soldiers. Now, in a change of course, Mr. Abe maintains that the actual kidnapping was committed not by the Japanese army but by private contractors. One leading lawmaker compared the government's role to the outsourcing of cafeteria services to a private firm. "Where there's demand," he told the AP, "business crops up."
This excuse is shamefully weak. We ordinarily would not consider it especially mitigating if someone charged with a rape-kidnapping acknowledged the rape but explained that he bought the victims from a private vendor rather than abducting them himself. Mr. Abe's implication seems to be that the guilt of the Japanese government is somehow reduced because it was renting the services of the comfort women from private firms -- like a customer buying the services of a prostitute from a pimp. In short, this was business, not personal.
But there is further reason to find Abe's suggestion outrageous. When women who survived the sex-slavery camps sued Japan in federal court six years ago, they alleged that the whole sex slavery scheme functioned as commercial activity. Faced with this charge, Japan denied it had acted as a business. The D.C. district court agreed, holding in effect that the fact that the women were abducted and enslaved pursuant to a Japanese government "master plan" distinguished their case from routine commercial prostitution. The court concluded that this "barbaric" conduct was more like a war crime or a crime against humanity than a commercial venture, and so Japan could not be held liable under the provision of the Foreign Sovereign Immunities Act that allows governments to be sued when they act like businesses.
It is particularly pernicious that, having benefited from the court's conclusion that abduction by Japanese soldiers was not business, Tokyo would now deny that its soldiers ever abducted anyone at all. If in 2001 Japan had said publicly that the comfort women were bought as part of the commercial flow of supply and demand, the comfort women could have used it to support their claim that the Japanese government was engaged in commercial activity. And if Japan had asserted that it outsourced the filling of its sex camps to private contractors, the court may well have concluded that the whole undertaking was more like a business than a non-commercial wartime atrocity.
Politics and litigation are not the same thing, of course. A well-represented litigant will often fit his account to the structure of the law, and Japan advanced a raft of other legal arguments to quash the suit, several of which were later adopted by the D.C. circuit court of appeals (on different occasions). The comfort women still might not have won their case. But precisely because political and legal arguments differ, Japan should be held morally accountable for the hypocrisy of its bait-and-switch approach even now that the courts have blocked the comfort women's case.
It is also worth keeping in mind that the denial of responsibility is an ongoing harm. Unlike the victims of the Nazi slave labor camps, the comfort women have never received formal reparations. The unofficial compensation scheme set to end this month was no substitute for acknowledgment of responsibility -- which is why many survivors refused to accept money from it.
Mr. Abe apparently started down the path of denial to gain political support for his faltering premiership -- itself a disturbing comment on Japan's continued unwillingness to come to term with its crimes as Germany has. Any such support, unfortunately, is gained only at the expense of surviving victims -- and of anyone who cares about the truth.