A Message for the International Symposium Commemorating the First International Memorial Day for the “Comfort Women”
13 August 2013
Ladies and gentlemen,
I wish to thank the organizers for inviting me to participate in this International Symposium to commemorate the first anniversary of the International Memorial Day for the “Comfort Women” and to address this important issue. I regret, however, I am unable to attend in person and hereby provide a short message to be read out on my behalf.
Several UN and other international human rights organizations including the first Special Rapporteur on violence against women following her visit to Japan in 19951, the Committee on the Elimination of All Forms of Discrimination against Women, the Committee Against Torture (CAT), the Human Rights Committee (CCPR), the Universal Periodic Review of the Human Rights Council (UPR), and the ILO, have made recommendations regarding the comfort women issue. Among the numerous issues that have been addresses, the need for acknowledgement of harms perpetrated; accountability for such harms; and also the need for reparations, are some crucial aspects. I will address the last aspect in this brief presentation.
The need for reparations for women victims of violence has been one of the on-going themes in the work of my mandate. My 2010 thematic report to the Human Rights Council was devoted to the issue of reparations, and I would like to share with you some of the main findings of my research on this subject. I will also complement this presentation with a brief description of the international human rights principles that are applicable to this particular issue.
The mandate of the Special Rapporteur on Violence against Women has consistently adopted a holistic approach to violence against women by recognizing it as a form of discrimination against and subordination of women at both the individual and structural level. This approach acknowledges that violence against women results from a complex interplay of individual, family, community and social factors. In so doing, the mandate situates violence against women on a continuum, in terms of both time and place, and thus examines and addresses violence against women, its causes and consequences in all spheres of human interaction and in all situations – whether in times of peace or conflict, past or present.
Situations of conflict, violence and insecurity, exacerbate existing environments of discrimination and oppression of women. The first mandate-holder devoted a full report specifically on Violence against women perpetrated and/or condoned by the State during times of conflict (1997-2000), which emphasized the significant gap between the international community’s recognition that those who commit rape and other gender-based violence are legally liable and must be punished, and the political will of Member States to enforce international humanitarian and human rights law, to hold accountable those who violate it.
Often, women bear most of the consequences of violence inflicted upon them and their families. Because each woman experiences violence differently, targeted and specific measures of redress are needed to meet their individual needs and priorities. Since violence perpetrated against individual women generally feeds into patterns of pre-existing and often cross-cutting structural subordination and systemic marginalization, measures of redress need to link individual reparation and structural transformation. I have noted in my report that victims of sexual crimes often do not want to receive economic compensation without an official apology and official recognition of the responsibility of the State with regard to these crimes.
The legal basis for a right to a remedy and, linked to it, a right to reparation has become firmly enshrined in the corpus of international human rights and humanitarian instruments. For instance, the 1993 Declaration on the Elimination of Violence against Women states in article 4 (d) that women who are subjected to violence should be provided with access to the mechanisms of justice and, as provided for by national legislation, to just and effective remedies for the harm that they have suffered, and that States should inform women of their rights in seeking redress through such mechanisms. Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires that States ensure that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.
The 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law defines the parameters of state responsibility for providing reparation to victims for acts or omissions which can be attributed to the State. It highlights that States are responsible for their failures to meet their international obligations even when substantive breaches originate in the conduct of private persons. The Basic Guidelines and Principles also affirm that the modality of reparation must be proportional to the gravity of the violation and can include the following forms: 1) restitution, as those measures to restore the victim to his/her original situation before the violation; 2) compensation for any economically assessable damage; 3) measures of rehabilitation; 4) measures of satisfaction; and 5) guarantees of non-repetition.
In view of the structural and multiple forms of discrimination that women face during conflict and post-conflict as well as in times of peace, I argue that reparations cannot be just about returning women to the situation in which they were found before the individual instance of violence. Reparations should strive to have a transformative potential. This implies that reparations should aspire, to the extent possible, to subvert instead of reinforce pre-existing patterns of cross-cutting structural subordination, gender hierarchies, systemic marginalization and structural inequalities that may be at the root cause of the violence that women experience.
In this regard, complex schemes of reparations, such as those that provide a variety of benefits, including guarantees of non-repetition, can better address the needs of female beneficiaries in terms of transformative potential, both on a practical material level and in terms of their self-confidence and esteem. Measures of symbolic recognition can also be crucial. They can simultaneously address both the recognition of victims and the dismantling of patriarchal understandings that give meaning to the violations.
Women-centred processes of reparations require participation of women in the process of shaping, implementing, monitoring and evaluating reparations programmes; inclusion in the design of a reparations procedure that renders it accessible to all women and girls; the investigation of facts to determine whether certain violations of rights have taken place and making sure that those violations that target women and girls have been duly included; the determination of harms, including those which are gender-specific or have a differential impact on women and girls; the identification of responsibility for the violation, including by omission, and by those perpetrators that target women and girls; and determination of measures of redress aimed at returning the victim to where she was before the violation took place, except for when those measures may in themselves be discriminatory or fail to address the structural roots underlying the violence.
The demand for acknowledgement, truth, justice and reparations for acts of violence against women, is a global challenge that my mandate continues to witness. The institutionalisation of memory is crucial, both to honour victims as well as to understand and avoid such violations in the future. It is my hope that civil society actors to continue to raise public awareness at the national and international level on this issue, and the need for acknowledgement, accountability and reparations.