The significance of this ruling to women’s human rights
The Korean Council
26 February 2021, 3rd International Symposium
Restoring the Right to Justice and Truth
The significance of this ruling to women’s human rights, expand the meaning of state immunity in relation to gender and human rights perspectives
Christine Chinkin Professorial Research Fellow, Centre for Women Peace and Security, London School of Economics & Principal Investigator, research funded by European Research Council on A Gendered Peace)
Panel 1 Tackling Impunity of Wartime Sexual Violence
The so-called “comfort women” have sought for many decades what has been termed gender justice – justice that addresses the gendered nature of the crimes in question including gender-based violence committed against women and girls because of their gender and who were as such dispensable when set against Japanese imperial and military ambition.
To achieve gender justice there must be applicable law and a mechanism with jurisdiction to give effect to that law. The past decades have seen striking developments in the first relating to the recognition of sexual and gender-based violence as a violation of international human rights and criminal law, as well as its long term prohibition under International Humanitarian Law (IHL).
The acceptance of a jus cogens norm of non-discrimination including on the grounds of sex in international human rights law and of gender-based violence as a violation of human rights incurring state responsibility for violation has been developed though the General Recommendations and opinions of the CEDAW Committee, declarations and final documents of global summit meetings, jurisprudence of the regional human rights institutions in Africa, Europe and Latin America and the reports of the UN special procedures. These different bodies have borrowed from each other and built on each other’s work to create a transnational norm that defines such violence, asserts states’ obligations, recognises ‘failure to protect against such violence as a breach of women’s right to equal protection of the law’ and their entitlement to reparation for breach of an international norm, The CEDAW Committee has confirmed its view that opinio juris and state practice demonstrate that the prohibition of gender-based violence against women has evolved into a principle of customary international law. In practice this means that it is binding on all states whether they have signed up to CEDAW or not. In fact the Republic of Korea and Japan are both parties to CEDAW.
There has been parallel progress in international criminal law. ...