Prologue
The flow of the ‘popularization of international law’

Private tribunals are mostly attempted as a last resort when it has been deemed impossible to hold criminal responsibility via actual courts due to the statute of limitations, immunity from responsibility, etc. The positive law determines the law’s effectiveness on the basis of authority, but for a ‘people’s tribunal’, which addresses the bitter baggage that cannot be resolved by the positive law, the foundation of its effectiveness and authority is placed on the ‘people’. The Women's International War Crimes Tribunal on the Trial of Japan's Military Sexual Slavery in 2000 (hereinafter the ‘Women's International War Crimes Tribunal 2000’), which was hosted in Tokyo, Japan from December 8 to 12, 2000, was a people’s tribunal^[1]that held the Japanese government – the perpetrating state - and Emperor Hirohito responsible for war crimes. It was viewed as the most appropriate alternative plan devised at a time when it was no longer feasible to hold a legally effective international court with any cooperation from the Japanese government. 

Christine Chinkin, a judge for the Women's International War Crimes Tribunal 2000, stated that, "Law is an instrument for civil societies that does not belong to any government, and if a state fails to fulfill its duty to ensure justice, civil societies should be able to ‘intervene’." People’s tribunals are based on this premise. Also, people’s tribunals cannot impose punishment or order compensation, but they can make a recommendation based on the value and moral force of legal judgments.^[2]

Therefore, the authority of the people’s tribunals comes from the people, and the tribunals’ judgments and any enforcement of the adjoining recommendations depend on the power of the people, in other words, ‘the people across borders’, who also organize the tribunals. Japanese courts, which had long adhered to the old mindset that international law is a promise between countries, had completely fallen behind the international trend of the ‘popularization of international law’^[3]at the time. For this reason, the Women's International War Crimes Tribunal 2000 was also a challenge for the people beyond national borders against the outdated nationalistic attitude of the Japanese judicial branch. 

 

“I inherited those women’s pain,
and they inherited my pain.”

The United States’ interference in internal affairs served as a direct trigger for the Guatemalan Civil War which expressed extreme contempt and racism against its indigenous people. Guatemala’s innovative presidents, such as Juan José Arévalo and Jacobo Arbenz Guzmán, emerged after 1944 to reform the exploitation structure of the banana plantations that had been continuing since the 19th century. In particular, Arbenz, who was elected in 1951, devoted his efforts to nationalizing many of the sources of the exploitation structure, including the land owned by the United Fruits Company. However, these efforts were thwarted in 1954 when a coup broke out due to military intervention from the United States’ Eisenhower regime.^[4]

Eventually, in 1960, a civil war started between the armed guerrilla forces and the government forces which colluded with the United States, and in particular, the anti-communist dictator José Efrain Rios Montt mobilized armed forces and the Patrulla de Autodefensa Civil (PAC), which forced the civilians’ participation, to commit genocide and rape against the indigenous people while fighting the guerrillas in 1982-1983. 

According to a 1999 survey announced by the ‘Comisión para el Esclarecimiento Histórico (CEH)’, during the 1960–1996 civil war, more than 200,000 people were killed in Guatemala, and about 50,000 people went missing. The war led to roughly 250,000 children being orphaned, and about 1.5 million people lost their homes and became refugees.^[5]

Yolanda Aguilar, who proposed the ‘People's Tribunal for Women‘ in Guatemala, was a victim of sexual violence perpetrated during the Guatemalan Civil War. She was the person who took the witness stand at the international public hearing <Crimes Against Women Under Modern Conflicts>on the fourth day of the Women's International War Crimes Tribunal 2000. Yolanda attended a Catholic school in Guatemala City in the 1960s and 1970s while being raised by parents advocating the rights of farmers and laborers. Her eyes were wide open very early on towards poverty and inequality in society, and she became aware of the hardships faced by female factory workers after reading Russian author Gorky's . After her father and younger brother were killed by the military governing power in 1975, her mother started working for an armed revolutionary organization called Las Fuerzas Armadas Rebeldes (FAR), and Yolanda, from the age of 13, also taught workers how to read or make firebombs. Then, in 1979, when she was 15, she was arrested for handing out flyers and fell victim to horrendous sexual torture, including beatings and rape. 

Yolanda recalls that afterwards, she lost her eyesight for three months because of the inflammation caused by the beatings, but also because her “head and body did not want to see anything”. Her sight was restored only when she left Guatemala in 1980 to go to Mexico, and she immediately left Mexico to live in Cuba for two years. Belatedly learning that she was pregnant as a result of the sexual violence, she had an abortion without telling anyone. 

In 1983, she went to Petén, a border area north of Guatemala, where she stayed for five years in tight solidarity with her rebel colleagues to build a world free of social ranks or classes. Sexual violence was still rampant in Guatemala when she returned five years later. Yolanda worked from 1992 to 1996 to listen to and record the stories of women who had been raped, but at that time there was no way that justice could be implemented for the victims of sexual violence. In the meantime, she was offered work by REMHI^[6], an organization dedicated to gathering testimonies from victims during the Guatemalan Civil War. Yolanda reported that during the process of hearing and recording the testimonies about the armed conflict, she discovered her own story was connected with the stories of those women. Yolanda expressed her feelings at the time with the following words: 

"I inherited those women’s pain, and they inherited my pain. We inherited each other's pain."^[7]

 

 

Guatemala's damage caused by sexual violence and survival experiences are shared at
the Women's International War Crimes Tribunal 2000

Yolanda first heard about the Japanese Military “Comfort Women” from a Japanese woman who was translating a REMHI report. She was asked to testify in the Women's International War Crimes Tribunal 2000 about her experiences of sexual violence during the Guatemalan Civil War. At the public hearing for the Women's International War Crimes Tribunal 2000, instead of testifying to the cruelty that the audience would have expected to hear about, Yolanda instead discussed the ways to overcome together the overwhelming violence she had experienced and the power she had witnessed from her grandmother, mother, and herself. 

"Even in the midst of the most difficult situations, the most horrible chaos, and the deepest crisis, I was able to create a different world within the relationships I had with the people around me."

Also, during an interview^[8] in 2015, she noted “I was moved to learn through the Women's International War Crimes Tribunal 2000 that there were so many women everywhere in the world, including Africa, Asia, Europe, Latin America, and so on, who were willing to discuss their experiences of violence. They have been waiting 50 years to tell their stories.” 

 

Project
‘From the Victims of Wartime Sexual Violence to the Agents of Transformation’ 

After participating in the Women's International War Crimes Tribunal 2000, Yolanda appealed to several women's organizations to talk about the experiences of sexual violence during the civil war, which had been a taboo subject at the time, and create a place to share such pain. In 2002, she initiated a project called ‘From the Victims of Wartime Sexual Violence to the Agents of Transformation’ (hereinafter ‘From Victims to Agents’). The first thing she carried out for the project was training female promoters who could speak both Spanish and the language of the indigenous people. That was because the words such as ‘rape’ or ‘sexual slave’ could not be easily translated into the language of the Mayan indigenous people. 

(Photo from: Yayori Award website)^[9])

 

The following demonstrates one of the major testimonies: 

""'They are all dead', the soldiers said. Then they added ‘How should we enjoy this?’ while bringing the prisoners. There were men, women, and also other enlisted men. I heard laughter and went to see what was going on, and I saw that the soldiers were ordering the prisoners to rape women. The soldiers were laughing with each other while watching that act unfold. The prisoners were starving and unable to sleep, and they even stumbled, but they were still being forced to rape women." (Important testimony 027 perpetrator, year 1982)^[10]

Women had to live on a daily basis shrouded by fear and violence during the civil war. As they witnessed the murders in front of their eyes, and while death loomed upon them, they were forced to cook and deliver meals for the soldiers, dance and march for them, and then be raped by them. 
 

 

The Guatemalan Civil War ended on December 29, 1996 with a peace treaty between the guerrilla forces the ‘Unidad Revolucionaria Nacional Guatemalteca (URNG)’ and the government forces. The most important thing for the victims was the punishment of and compensation from the perpetrator, and for this, a trial based on the justice system should have been requested. In Guatemala, however, political crimes committed during civil wars were immune from responsibility according to the 「National Reconciliation Act」, which was created by the state power during the peace treaty, and In terms of sexual violence, there was a pervasive social atmosphere which encouraged the placement of any responsibility to the victims. For that reason, implementing a criminal trial was difficult, so the ‘From Victims to Agents’ project appealed to the international community from 2007 to reveal that sexual violence was perpetrated as one of the means of combat during the civil wars, and in 2010, a private tribunal was held to make recommendations to states to prevent its recurrence. 

 

People's Tribunal for Women in Guatemala
lifts immunity for the perpetrators of sexual violence 

The ‘People's Tribunal for Women in Guatemala’ (hereinafter ‘People’s Tribunal for Women’) was held at a university in Guatemala City for two days from March 4, 2010. It had been only two years since the United Nations Security Council passed the ‘Resolution 1820’^[11], which recommended countries to end armed conflicts and subsequent non-/anti-punishment under international human rights laws, and focused on the fact that women and girls are subject to sexual violence (attacks) and such sexual violence perpetrated in this way can on occasion continue even after the wars have ended. 

There were 110 women sitting in the audience seats as plaintiffs, and the appointed ‘honorary judges’ included: Juana Mendes, a Mayan woman who was the first person to successfully convict those who raped women detained by Guatemala’s security forces; Gurades Canares who had suffered sexual violence in Peru under Fujimori’s administration; Tidi Atim, who had worked to resolve the issue of wartime sexual violence in Uganda; and Arakawa Shihoko (荒川志保子), who was a participant in the Women's International War Crimes Tribunal 2000. The important point was that they were not lawyers but women who fought against sexual violence.^[12]

The significant difference between the People’s Tribunal for Women and the Women's International War Crimes Tribunal 2000 was that maintaining the anonymity of the plaintiffs was important in the People’s Tribunal for Women. In order to protect the identity of the witnesses, a screen was installed on the podium so that only the silhouette of the witnesses could be seen. This was because some of the plaintiffs appeared in court without their families knowing, and others still lived in the same neighborhood as the perpetrators. Following the witnesses' testimonies on the first day, nine experts gave testimonies on the second day. Since the plaintiffs remained anonymous, any evidence on individual cases was not collected, and instead, the focus was on how to treat sexual violence and who was responsible in the context of the civil war. 

The final verdict read out loud by the honorary judges included the acknowledgement that significant violations were committed under Guatemala’s criminal law and international law during the civil war, and the declaration that the government was responsible for the actions committed by public officials, military, and the police. The final judgment also pointed out that sexual violence was persisting due to the continuation of immunity from responsibility and subsequent non-/anti-punishment, and recommended 15 items of actions for the government, including lifting immunity for human rights violations committed during the civil wars, the ratification of the treaty for the International Criminal Court, the disclosure of information related to the state and related agencies, the provision of compensation for the victims, policy making to prevent a recurrence, and so on.^[13]

 

The first case in which the former soldiers were convicted in 2016,
The Sepur Zarco Trial

The ‘From Victims to Agents’ project developed into the ‘Women who Breaks Silence’ project. The project was operated jointly by three organizations for female lawyers, including the 'Unión Nacional de Mujeres Guatemaltecas (UNAMG)', the 'Equipo de Estudios Comunitarios y Acción Psicosocial (ECAP)', and the 'Mujeres Transformando El Mundo (MTM)'. In 2011, with the support of the local women's groups and the UN WOMEN, 15 women who survived sexual violence in the Sepur Zarco region in eastern Guatemala filed a lawsuit in the Supreme Court of Justice of Guatemala to demand punishment of the perpetrators. On March 2, 2016, after 22 hearings, the court finally indicted two former soldiers on the charges of crimes against humanity including rape, murder, and slavery, and granted 18 measures of compensation for the female survivors and communities. It was the first time in history that the Guatemalan domestic court applied domestic law and international criminal law to consider the charges of sexual slavery that had occurred during conflicts.^[14]

In 1982 when the civil war was at its most intensive phase, their husbands were ‘forcefully disappeared’ and their houses were burned by the army. Afterwards, they became sexual slaves at the remaining military station in the village which lasted for a number of years. The station was closed in 1988, and the defendants were direct perpetrators and commanders who gave orders, such as soldiers, vigilantes, etc. The trial revealed that sexual violence against women was part of the military strategy to suppress any form of rebellion.

The historic achievement of this fight was the deterrence of violence against women and the establishment of a definition for wartime sexual violence. The court decided that the state should pay for the damages to the affected village and its surrounding villages collectively. This measure was significant in that it allowed Guatemala's indigenous people and rural communities to secure basic social and economic rights which had been often denied for them.  The measures included setting up high schools and health clinics in the area for the first time and building monuments for the women’s murdered husbands.^[15]

 

Epilogue
Questioning again the issue of non-/anti-punishment and colonial responsibility

However, even after the Sepur Zarco trial, sexual violence and the murder of women, or femicide, have continued, and the Guatemalan government did not implement much of the collective compensation ordered by the court. The Sepur Zarco case suggests that communities and regional societies have experienced severe damages throughout the centuries, ranging from the crimes related to the past colonization by Spain in the 16th century to recent human rights violations, and there were always people who had fought against those challenges. At the same time, nevertheless, the case also proved that it was still very difficult to solve those problems.  

During the Guatemalan Civil War, 200,000 people were killed or disappeared. About 83% of the victims were Mayan, with 626 recorded massacres also occurring mostly in the Mayan community. The wartime sexual violence perpetrated during the Guatemalan Civil War entails a complex context that cannot be properly explained by any simple aspect such as the oppressed Mayan indigenous people versus wrongdoings by government soldiers. Therefore, we must examine and address the subject delicately, by considering the points where the factors such as the situation of Guatemala which was a Spanish colony, the conspiracy perpetuated by the United States and the coup forces, the problems of foreign companies that owned unused land in Guatemala, the lack of social awareness on sex crimes, racism, etc. entangle with each other. The Women's International War Crimes Tribunal 2000 and the ensuing People's Tribunal for Women in Guatemala which took place 10 years later shared the issues of colonial responsibility, (colonial) corporate responsibility, and non-/anti-punishment as the unfinished tasks. 

And these problems do not simply remain as past history but affect the current affairs. In 2019, it was reported that the pregnancy of women aged 10 to 14 in Guatemala was becoming a hugely significant social issue. Most of these women came from poor families and were the victims of sexual assault. Another serious problem was that the overwhelming majority of the perpetrators of violence were family members. In general, such sexual violence occurs frequently in areas where indigenous people live, and due to the areas’ remote locations and thus poor communication connection, it is difficult for the victims to ask for help from outside.^[16] Paradoxically, such a difficulty is well demonstrated through the craze for self-defense techniques among indigenous girls. It is reported that self-defense techniques, such as Taekwondo, etc., have been gaining popularity since 2015 among indigenous women. Miriam Cucul Sam, 17, the winner of Guatemala’s Taekwondo tournament in 2019, commented: 

""Boys always used to bully us at school by saying that they were stronger than girls. Now I am not afraid of boys’ bullying me. Taekwondo taught me how to respect myself."^[17]

 

The challenges encountered by teenage indigenous women worsened during the COVID-19 pandemic. Difficulties in accessing the internet, smartphones and computers led to a lack of education. They now face increasing domestic violence and are forced to continue living with their abusers, but the support services they can receive are limited. As a result, teenage pregnancy and maternal mortality rates are rising, and the situation is much worse in rural areas where access to healthcare is woefully insufficient. Consequently, teenage women formed a group called Las Niñas Lideran (Girls Lead) to lead their own cultural activities and reduce the suicide rates. They also began to demand the government to improve access to education, expand medical services, strengthen services for the survivors of violence, and so on.^[18] The following is the first slogan that can be seen on their website: 

"I hope that the energy in us is reflected through our actions every day in order to change the conditions that we are in."

 

The fight is not over yet. Guatemala's women are still standing together in the midst of various attempts to combat sexual violence that has now become commonplace. Women who won the trial but have yet to receive any compensation compare their efforts to corn which is their staple food. 

"We planted the seeds of corn. We will not be able to eat it, but our children will be."

 

 

 

Footnotes

1. ^ ‘People’ (인민/人民), which was once a prohibited word, is still considered to be an uncomfortable word for South Koreans in general. Instead of 'people', South Korea used the word 'the public' (국민/國民). This word may sound dreadful because it supposes that people cannot exist without a controlling state. Therefore, the concept of 'people' must now be reconsidered and redefined. After the fall of socialism, liberal parliamentary democracy has been confining the significance of ‘people's sovereignty’ to a passive meaning - delegation of sovereignty through elections (Written by Alain Badiou et al., translated by Seo Yong-soon et al. 『Qu'est-ce qu'un peuple?』, Hyunsilbook, 2014, pp.185-189). As such, the concept of ‘the public’ or ‘citizen’ (시민/市民) which restricts the meaning of ‘people’ inevitably produces ‘excluded beings’ such as non-citizens, refugees, etc. while the expression ‘general public’ (민중/民衆) reminds us of the democratic movement that occurred during a certain period in South Korea, thereby making those words not appropriate for the translation of ‘people’. Therefore, in this article, the world ‘people’ is translated to mean the word ‘people’ (인민/人民), and also ‘people's tribunal’ is denoted as ‘people's (인민/人民) tribunal’ in order to consider the possibility of ‘novel people’ (인민/人民), or ‘other people’ (인민/人民) who differ from the people the state counts, and explore the possibility of establishing a space for another community in its own right.
2. ^ Compiled by the Japan's War Responsibility Data Center, translated by Kang Hye-jung 『Research on the Japanese Military “Comfort Women”』, Northeast Asian History Foundation, 2011, pp. 300-301.
3. ^ The governments of South Korea and Japan have been delaying the legal judgments based on the San Francisco Peace Treaty or the Agreement on the Settlement of Problems concerning Property and Claims and on Economic Cooperation between the Republic of Korea and Japan, but conversely, it is the ‘popularization of international law’ that makes such kinds of international laws, treaties between countries, etc. the subject of defense or judgment. In this regard, the Women's International War Crimes Tribunal 2000 was significant as it invented a new tribunal or new legal formality that corresponded to the popularization of international law. (Shim Ah-jeong, 「’People's Tribunal’ as a Place to Realize ‘Justice without Power’ – Focusing on the Case of the Women's International War Crimes Tribunal on the Trial of Japan's Military Sexual Slavery in 2000」 『Journal of Japanese Studies』 Volume 30, The Center for Japanese Studies at Korea University, 2018, p. 48.
4. ^ Roh Yong-seok, 「The Guatemalan Civil War that Killed 200,000 People - Records on the Settlement of Past Affairs」, 『OhmyNews』 (Article entry date: March 24, 2018, Article search date: November 14, 2020).
5. ^ Park Gu-byeong, 「After the End of the Guatemalan Civil War: Rough Road to Implementing a Peace Treaty」, 『Asian Journal of Latin American Studies』 vol.31, No4, 2018, p. 21.
6. ^ Recuperación de la Memoria Histórica. It is also known as the Restoration of the Historical Memory Project. On April 26, 1998, two days after the release of the final report of the REMHI project, Bishop Juan Gerardi, who led the project, was assassinated outside his home. REMHI was an unprecedented attempt led by the Catholic Church to record atrocities committed during the 36-year long Guatemalan Civil War. The Archdiocese started the project in 1995.
7. ^ The part about Yolanda’s life was written mainly by referring to the interview articles below.   https://storiesfromguatemala.com/ (Article entry date: May 15, 2020 / Final search date: October 20, 2020)
8. ^ A video interview conducted by Katia Orantes in Guatemala City on February 26, 2015. For the oral testimony collected by Stephen O'Brien, please refer to the website Stories from Guatemala (Oral testimony illuminating the historical and social conditions). https://storiesfromguatemala.com/ (Article entry date: May 15, 2020 / Final search date: October 20, 2020)
9. ^  https://www.wfphr.org/yayori/award/y_2009.html(Article search date: November 2, 2020). The Yayori Award is a prize that encourages women's human rights activities by selecting activists, journalists, and artists who promote grassroots campaigns in various parts of Asia to build the 21st century that is free from war and gender discrimination. It was named in commemoration of a Japanese activist and journalist Matsui Yayori, who played a pivotal role in organizing the Women's International War Crimes Tribunal 2000. The ‘Yayori Award’ and the ‘Yayori Journalist Award’ have been awarded for 10 years since 2004 and ended in 2014.
10. ^ For the related testimonies, refer to the speech tour materials for the winning of the ‘Yayori Award’ (December 2009) on the Matsui Yayori Award website. http://www.jca.apc.org/recom/sonrisa/200911yayori-siryo.pdf (Article search date: November 2, 2020).
11. ^  For the original texts of UN SCR 1820, please refer to the UN website.  https://www.un.org/ruleoflaw/blog/document/security-council-resolution-1820-2008-on-women-and-peace-and-security/
12. ^ 柴田修子 「戦時性暴力の被害者から変革の主体へ⎯中米グアテマラにおける民衆法廷の仕組み」 『立命館元号文化研究(23巻)2号』, 2011年, pp. 75-76.
13. ^ Please refer to the Guatemala Human Rights Commission's website for the final written judgement. https://www.ghrc-usa.org/Resources/2010/tribunal_de_conciencia.htm#pronunciamiento
14. ^ 「2012年11月14日　「沈黙を破ってーーグアテマラ戦時下性暴力スピーキングツアー2012」 アナ・アリシア・ラミセス・ポップさん」 , 同志社大学　グローバル・スタディーズ研究科, 「女性・戦争・人権」学会 Website https://www.war-women-rights.com (Article search date: November 2, 2020).
15. ^ Sepur Zarco case: The Guatemalan women who rose for justice in a war-torn nation: UN WOMEN website https://www.unwomen.org/en/news/stories/2018/10/feature-sepur-zarco-case (Article entry date: October 19, 2018, Article search date: November 2, 2020).
16. ^ Son Young-sik, 「This is South America: Guatemala's 10- to 14-year-old Girls are Experiencing Dramatic Increases in Pregnancy Rates. Most are the Victims of Sexual Assault」, 『The Seoul Shinmun』 (Article entry date: March 6, 2019, Article search date: November 3, 2020)
17. ^ Byun Sun-gu, 「Taekwondo Kicks by Native Guatemalan Girls, "We are Not Afraid of Sexual Violence."」, 『JoongAng Ilbo』 (Article entry date: November 29, 2019, Article search date: November 3, 2020)
18. ^ UN WOMEN Website https://www.unwomen.org/en/news/stories/2020/11/i-am-generation-equality-ixchel-lucas