A court in South Korea has ordered Japan to compensate women forced into sex slavery by its military during World War 2. On 8 January 2021, Seoul Central District Court awarded 100 million won (£67,000) each to 12 “comfort women”, and gave permission for the women to seize Japanese state assets if compensation is not paid. The ruling follows a trend of domestic courts not protecting states from lawsuits, contrary to international law.

JAPANESE CRIMES AGAINST WOMEN IN KOREA

Between 1932 and 1945, the Japanese army “forced over 200,000 women into sexual slavery in rape centres throughout Asia”, according to the Special Rapporteur for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities in a 1998 report. Though this figure is disputed. The women were abducted, transported to the front, and forced to have sex with Japanese soldiers. Those who resisted were tortured or killed. Chong Ok Sun recalls that, at the age of 13, she was:

“[T]aken to the Japanese army garrison barracks in Heysan City. There were around 400 other Korean young girls with me and we had to serve over 5,000 Japanese soldiers as sex slaves every day - up to 40 men per day. Each time I protested, they hit me or stuffed rags in my mouth. One held a matchstick to my private parts until I obeyed him. My private parts were oozing with blood."

One woman who demanded to know why she was being raped was stripped, bound, and rolled over a bed of nails until her flesh came off. Another, who had been infected with a venereal disease, had a hot iron bar inserted into her vagina. The Global Tribunal on Violations of Women’s Rights in 1993 estimated that fewer than 10% of “comfort women” survived their ordeal.

JAPAN CONFRONTS IT’S PAST

Japan denied forcing women into sex slavery until the early 1990s when documents proving the state’s involvement were found. Weekly protests outside the Japanese embassy in Seoul started and continue to this day. In 1997, three Korean “comfort women” successfully sued the Japanese government in a Japanese court. The court ordered the government to pay damages and issue an apology, but the decision was overturned on appeal.

Controversy over Japan’s apparent refusal to take responsibility prompted it to sign an agreement with South Korea in 2015 to settle the issue “finally and irreversibly”. Japan agreed to apologise for its wartime actions and to pay JP¥1 billion (~£7 million) towards a Korean compensation fund. In turn, South Korea agreed to remove a bronze statue of a “comfort woman” that had been erected outside the Japanese embassy in Seoul. The agreement was praised internationally but criticised in South Korea, which pulled out of the agreement in 2018 without removing the statute. 

A LANDMARK DECISION ON STATE IMMUNITY

The present lawsuit was filed in January 2016 after Japan ignored an earlier attempt at alternative dispute resolution. Of the 12 original claimants, only five were alive for the ruling on 8 January 2021. A second lawsuit filed by 20 women and their family members was to be decided on 13 January but has been adjourned till March.

Media reporting on the case has focused on worsening South Korea-Japan relations (here, here and here), ignoring the most significant aspect of the judgment—its restriction of state immunity. State immunity is the principle that neither states nor their officials can be sued in foreign courts (unless it agrees). The principle is an established part of customary international law. However, the court said that “state immunity cannot be applied to crimes against humanity”. The judgment follows a precedent set by the Italian Supreme Court, which ruled in 2014 that a claimant could sue Germany for making him do forced labour during the Second World War.

State immunity was construed widely by both national and international courts until the mid-20th Century. However, since the Second World War, national courts have started restricting state immunity. For example, the German Constitutional Court ruled that the Iranian state could be sued for failing to pay contractors for repair work on its embassy. In the infamous case of Re Pinochet (No.3), the British House of Lords ruled that the former dictator of Chile did not enjoy state immunity for the alleged crime of torture. 

However, international courts have refused to restrict state immunity. The International Court of Justice ruled that Italy broke international law when it allowed a claimant to sue Germany in the Italian courts. Similarly, the European Court of Human Rights refused to enforce a judgment made against Germany by a Greek court, following a lawsuit by the family of victims of the 1944 Distomo massacre. Both cited state immunity.

Japan likewise asserted state immunity as its reason for refusing to participate in either “comfort women” case, but has not said If it will take South Korea to the International Court of Justice. If it does, the court will find in Japan’s favour. This will fulfil a prediction made here at Human Rights Pulse that the “comfort women” cases could lead to a two-tier application of state immunity, with international courts upholding the doctrine and domestic courts restricting it in human rights cases.

Samuel is a trainee solicitor and postgraduate at Cardiff University. He is active in several U.K.-based organisations campaigning on behalf of Hong Kong and BNOs. His research interests include transitional justice and the rule of law.

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