Symposium: Accountability for core international crimes in the ASEAN region: diversity in recent developments
The right to non-discriminatory reparations for slavery crimes: Malaya Lolas secure ground-breaking CEDAW decision and holistic recommendations
A collaboration between CIL Dialogues and AsianSIL Voices
by Priya Gopalan and Alexandra Lily Kather
Published on 5 April 2023
On 3 March 2023, published on 8 March—International Women’s Day—2023, the Committee on the Elimination of Discrimination against Women (Committee) issued its decision in Natalie Alfonzo et. al concerning the Philippines’ obligations under Articles 1, 2 (b) and (c) and 6 of the Convention on the Elimination of Discrimination against Women (Convention or CEDAW). The decision finds that the Philippines breached its obligations under Article 1, 2(b) and 2(c) under the Convention and provides a list of holistic recommendations to the State Party.
This precedent-setting decision by the Committee acknowledges how the continuum of gender-based discrimination against Philippina women, including the authors of the communication, has been fueled over nearly four decades by (in)action of several government entities, courts and society at large. It honours the jus cogens status, severity, and multi-dimensional impact of gender-based slavery crimes. The decision also acknowledges the physical, psychological, social, economic, and intergenerational impact of such severe forms of gender-based violence as experienced by women enslaved by the Japanese Imperial Army in the Second World War. Specifically, it underlines how gender hierarchy in the aftermath of a colonial armed conflict resulted in further structural violence against women as well as social and political domination over them (for a definition of the term ‘women’ see here).
While Philippino men were conferred preferable treatment, often celebrated as war heroes and granted economic support, women, who were subjected to gendered slavery and other forms of sexual and gender-based violence, received no support. Instead, they were, through the lack of State support received, discriminated against, and publicly maligned as ‘prostitutes’, thus highlighting the State’s role in perpetrating and perpetuating gender inequity post-conflict. Continuous gender-based discrimination against survivors of conflict-related sexual violence is as structural as the violence itself. For example, in Kosovo, survivors of conflict-related sexual violence, had to fight for years to be recognised as war victims, having been excluded from legislation that provided reparations to other categories of war victims. Activists advocating for their recognition were intimidated. A prominent human rights activist, Nazlie Bala received an anonymous death threat stating, ‘Do not protect the shame. Otherwise, we will kill you.’ She was subsequently physically assaulted. This legislation was amended in 2014 when the Kosovo Parliament (despite vehement opposition from some members), approved revised legislation that recognises victims of sexual violence as war victims. Some survivors started receiving payments in early 2018 (See Priya Gopalan, ‘Conflict-Related Sexual Violence in Kosovo – Gendering Justice Through Transformative Reparations’, in Solange Mouthaan and Olga Jurasz (eds), Gender and War in International and Transitional Justice Perspectives (Intersentia, 2019). .
The decision in Natalie Alfonzo et. al has now firmly established that gender discrimination through laws, policies and (in)action by the State constitute breaches of State obligations under CEDAW. The initial communication was filed on 25 November 2019—the International Day for the Elimination of Violence Against Women—by the Center for International Law and the European Center for Constitutional and Human Rights on behalf of 24 Philippina women, all members of the Malaya Lolas (Free Grandmothers) – a non-profit organization, established to provide support to the survivors of slavery and sexual violence perpetrated by the Imperial Japanese Army in the Philippines during the Second World War.
At the epicenter of the demands of the authors (Malaya Lolas) is the quest for recognition for the lack of State support—medical, psychological, social, economic, memorial, educational—and the failure to grant participation avenues to co-create justice and reparation responses by the State. Even if their own government was not responsible or involved in the slavery crimes perpetrated by the Japanese Imperial Army, it enables and perpetuates ongoing gender-based discrimination, resulting from the slavery and other gender-based crimes they suffered. The authors (Malaya Lolas) outlined in their communication their experiences of continuous gender-based discrimination in the hands of society and government because they are women and because they are survivors of slavery crimes, including sexual violence. This included both inappropriate action as well as lack of appropriate action by the Philippines.
This decision sets a ground-breaking and critical precedent, in Asia and beyond, underlining holistic States’ responsibility under the Convention with respect to survivors of gender-based slavery crimes, including sexual violence. The decision demonstrates how the impact of gender-based slavery crimes, including sexual violence, can result in a continuum of gender-based discrimination if physical, psychological, economic and social as well as intergenerational consequences of such violence remain unaddressed and unseen. The decision is also testament to the importance of memorialization and the role of education in transforming past harms of structural mass violence on intersecting grounds, including gender.
Notably, the decision contains a set of immensely important recommendations. The Philippines is called upon to ensure that the authors (Malaya Lolas) receive full reparations, including recognition and redress, an official apology and material and moral damages, for the continuous discrimination that they suffered and restitution, rehabilitation and satisfaction, including the restoration of their dignity and reputation, which includes financial reparation proportionate to the physical, psychological and material damage suffered by them and to the gravity of the violations of their rights (para 11(a)).
The Committee’s recommendations also demand that the Philippines (i) establish an effective, nationwide reparation scheme to provide all forms of redress to victims of war crimes, including sexual violence, with equal access for men who are war veterans and women who are survivors of wartime sexual slavery to recognition, social benefits and other support measures to which they are entitled; (ii) ensure the removal of restrictive and discriminatory provisions from legislation and policies relating to redress for civilian victims of war, including survivors of wartime sexual violence and slavery; (iii) create a State-sanctioned fund to provide compensation and other forms of reparation to women who are victims of war crimes, in particular the institutionalised system of wartime sexual slavery, to ensure the restoration of their dignity, value and personal liberty; (iv) create a memorial to preserve the site of Bahay na Pula (Red House) or establish another space to commemorate the suffering inflicted to the victims/survivors of wartime sexual slavery and to honour their struggle for justice; and, lastly, (v) mainstream in the curricula of all academic institutions, including secondary university education, the history of Philippina women victims/survivors of wartime sexual slavery, as remembrance is critical to a sensitive understanding of the history of human rights violations endured by these women, to emphasise the importance of advancing human rights, and to avoid recurrence (para 11(b)).
This decision will join the ranks of milestone pronouncements of the Committee such as General Recommendation 30 (2013) which underscores the importance of ‘protecting women’s human rights at all times, advancing substantive gender equality before, during and after conflict …’. It builds on the Committee’s first decision upholding the rights to redress and reparations for survivors of conflict-related sexual violence. In the case of S.H., a survivor of conflict-related rape from Bosnia and Herzegovina (BiH), the Committee found that BiH had failed to act with due diligence and to conduct timely and effective investigations into the sexual violence committed against S.H., thus violating her right to fair and adequate compensation and support.
Despite these advancements and Malaya Lolas’ precedent-setting contributions in securing recognition and justice for survivors of gendered slavery and sexual violence in conflict, their journey to this decision gives pause for thought. In 2004, when the Malaya Lolas first turned to their own domestic courts without success, 70 members were still alive and participated in the legal intervention. In 2019, when the Malaya Lolas turned to the Committee, 46 members had passed away with 24 authors having submitted their communication. Nearly four decades after their gendered enslavement through the Japanese Imperial Army, a further three members have passed. Only 21 members of the Malaya Lolas are alive today to witness the fruit of their legal and political fight for justice and reparations. For those members of Malaya Lolas who have passed, justice delayed is certainly justice denied.
That said, beyond the Philippines, this decision serves as a fervent call for action to states to proactively fulfill their obligations under the Convention and to provide effective and immediate non-discriminatory support and reparations to survivors of slavery crimes, including those perpetrated by the Japanese Imperial Army.
Priya Gopalan (she) is a Malaysian international criminal lawyer, with a focus on gender, intersectionality and reparations. She is the Chair-Rapporteur of the UN Working Group on Arbitrary Detention.
Alexandra Lily Kather (they/she) is a co-founder of the emergent justice collective & international justice practitioner whose work seeks to advance accountability for the intersectional dimensions of international crimes, in particular sexual and slavery crimes.
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