The Ongoing Search for Justice for Victims of the Japanese War Crimes in Mapanique, Philippines


This post was published in the Oxford Human Rights Hub at http://ohrh.law.ox.ac.uk/?p=2764

On November 23, 1944, Japanese troops descended on the town of Mapanique in the Philippines. The troops gathered  men and boys in the town and proceeded to castrate them. Afterwards, the men were forced to put their severed sexual organs in their mouths before they were burned to death en masse. Women and girls were marched to what is known today as “Bahay na Pula” (red house) in San Ildenfonso, Bulacan. There, they were interred and repeatedly raped.

Members of the Malaya Lolas rallying outside the Philippine Supreme Court

The magnitude of the Japanese cruelty in Mapanique can be attributed to several causes. The town was known to be a hotbed of resistance to Japanese rule. It was in Central Luzon where the guerilla movement, HUKBALAHAP, was formed only months before the siege. One of the movement’s most respected leaders Commander Dayang Dayang was a native of Mapanique. The Japanese troops were also growing desperate because they knew they had already lost the war.

Fifty years later,  inspired by the revelations of South Korean women who publicly admitted that they were victims of the Japanese comfort women system, about 60 victims of war crimes from Mapanique formed the group known as Malaya Lola’s, or liberated grandmothers. While primarily an organization of women who were raped by the Japanese during the Mapanique siege, it also includes in its roster women whose husbands, sons and other male loved ones became victims of Japanese war atrocities.

In 2004, the Malaya Lolas filed suit in the Philippine Supreme Court to compel the Philippine government to espouse, or sponsor, their claims for compensation from the Japanese government. Prior to this suit, the Malaya Lolas had a suit for reparations dismissed by Japanese courts on the ground that the women do not have personality to sue under international law. The Japanese courts opined that the Philippine government must sponsor their claims. Hence, the case Vinuya et. al. versus Executive Secretary.

The position raised three points: one, mass rapes against civilian populations have always been subject of a non-derogable prohibition in times of war; two, it is also subject of a duty for all states to investigate, prosecute and punish the perpetrators thereof. And three, the commission of mass rape will not only entail the duty of a state to pay compensation as a consequence of the doing an internationally wrongful act, it is also the basis for individuals to incur individual criminal responsibility.

To counter the Philippine Government’s position that further reparations are barred by a waiver which the Republic had signed, the women argued that the waiver is null and void for being contrary to public policy and also that the state cannot waive a right that inures to its nationals.

6 years after the filing of the Vinuya case, and after 20 of the original petitioners had died, the Philippine Supreme Court unanimously dismissed the Malaya Lola’s petition. In its 33 page decision, the Court said that the claims for compensation are barred because of the San Francisco Peace Pact. In exchange for nominal war reparations, the government was said to have waived any and further claims for compensation from Japan, a view consistently espoused by the Department of Foreign Affairs. Furthermore, the court ruled that while it commiserates with the sufferings of the women of Mapanique, this, allegedly, is one instance where there is a violation of right but bereft of a legal remedy. The Court also said that while rape is prohibited, there is no non-derogable obligation to investigate, prosecute and punish those who committed mass rape as a war crime. This decision is the second siege of the women of Mapanique.

Fortunately, the women of  Mapanique have found new allies in their continuing search for justice. Pending resolution of their motion for reconsideration, the Korean Constitutional Court, ruling on a petition with the same issues as those in the Philippine Supreme  Court, ruled that the Korean government must espouse the claim of the Korean comfort women. Further, the European Center for Constitutional  and Human Rights filed intervention in the Philippine Supreme Court to argue that pacta sundt servanda cannot prevail over the jus cogens prohibition on rape. The intervention of the ECCHR in the case was facilitated by a non-profit organization, the Bertha Foundation, which has been funding young lawyers in both the ECCHR and Centerlaw, and counsel of the comfort women in the Philippine case.

Rape and probable cause against Del Castillo


Voting 38-10, with no abstentions, the House of Representatives Committee on Justice determined the existence of probable cause for betrayal of public trust against Supreme Court Associate Justice Mariano Del Castillo. This is the latest in the saga of the Malaya Lolas, victims of mass rape during World War II, who have been fighting for redress for the past 60 years. The impeachment, together with the Lolas’ motion for reconsideration pending in the case of Vinuya et al vs. Executive Secretary, are the last remaining legal attempts to obtain justice for these victims.It was my first time to attend the House proceedings. Last week, four of the Lolas trooped to the Committee to give evidence to prove the existence of probable cause against the magistrate. Unfortunately, in the one and only time I could have spoken on behalf of the Lolas in Congress, I happened to be abroad to deliver plenary remarks in an international conference to mark the tenth year of the International Criminal Court in Sydney, Australia. I would have preferred to talk on behalf of the Lolas in Congress. Unfortunately, my restricted and non-refundable ticket to Sydney had already been issued by the time I received my invitation to the Committee hearing. It was my law partner Joel Butuyan and the Executive Director of Center for International Law, Romel Bagares, who went to represent the Lolas in Congress.But just as the Lolas were giving their testimony in Congress, I too was discussing their plight in the ICC conference. Before an audience consisting of the “ who’s who” in international law, I discussed lessons learned and challenges arising from the Philippine accession to the Rome statute of the ICC. One such challenge is the ability of the Philippines to exercise primary jurisdiction in crimes cognizable by the ICC. I argued that the decision in Vinuya, the Lolas’ case, is evidence of a lack of capacity of our courts to apply the basic principles of international criminal law. This may be a from of “inability” to exercise primary jurisdiction. The good news is that this would justify the ICC prosecuting similar crimes in the future without offending sovereignty.

The audience was in disbelief when told about the Vinuya decision They could not understand why the Court declared that the waiver of further reparations provided in the San Francisco Peace pact should prevail over the jus cogens norm against rape as a war crime and the duty to provide redress to victims thereof. That the women are entitled to reparations despite the waiver of further reparation has been the consistent position of the United Nations, particularly the Special Rapporteur on violence against women and the Committee on the Elimination of Discrimination Against Women. Since the pendency of Vinuya, the South Korean Constitutional Court has expressed the same opinion. Only recently, the latter ruled that a failure of the South Korean government to espouse their comfort women’s claim is unconstitutional.

Worse, the audience was baffled with our Court’s opinion that rape only became criminal in the 1990s as a result of the decision of the Rwanda tribunal in the case of Prosecutor v. Akayesu. This was what prompted me to instruct my law associates to look at each and every footnote cited by the Court in Vineyard. Simply put, that conclusion was wrong.

Back to the Congressional hearing, much of the time spent prior to the voting on the existence of probable cause was whether the plagiarism and the twisting complained of by the complainants were serious enough to warrant impeachment. The chairman of the committee, Rep Neil Tupas, started the hearing by reading from the proceedings of the constitutional commission. It was clear from what Tupas read that betrayal of public trust as a impeachable offense is new. It was added to include acts which may not be criminal- but could still affect the fitness of an impeachable officer to hold office.

Yesterday’s ruling was ground breaking not only insofar as the Lolas’ quest for justice is concerned. In Roque v. De Venecia, our Court ruled that the definition of betrayal of pubic trust is beyond the ambit of judicial review and is a political question, The question was given an answer yesterday: 32 counts of plagiarism and the twisting perpetrated by Justice Del Castillo in Vinuya, albeit allegedly without intent, constitute betrayal of public trust.

Future magistrates, beware.