On 13 November 2019, Seoul Central District Court heard submissions from lawyers representing former “comfort women” and their surviving family who are suing the Japanese government.

(Editorial note: the term “comfort women” is a derogatory euphemism referring to women and girls from various Japanese-occupied territories during World War II who were forced into severe sexual slavery and generally held in brothels at the front lines of battle. The term is used here only in historical, identifying context.)

The plaintiffs assert that the Japanese army forced them into sex work and otherwise abused them during its occupation of the Korean Peninsula. They are claiming almost 3 billion won in damages.

In December 2015, Japan apologised for its wartime conduct and contributed 1 billion yen to a compensation fund for victims and, in tandem, South Korea also agreed to remove a “comfort woman” statue (which is one of many similar memorials depicting young girls in bronze sitting in a chair next to another empty chair) in front of the Japanese embassy in Seoul, promising not to raise the matter again. 

The claimants in the current case are unhappy with the agreement reached in 2015 by disgraced former South Korean President Park Geun-hye and Japanese Prime Minister Shinzo Abe. They argue that the agreement was made without properly consulting the survivors and does not hold Japan responsible for applicable crimes against humanity.

Japan has refused to engage with proceedings, arguing that under international law the state is immune from prosecution in a foreign court.

The case is the latest attempt by South Korea to reckon with its turbulent past. Rather than provide justice for survivors, however, many fear the case is likely to feed anti-Japanese sentiment and inflame discrimination against the families of pro-Japanese Koreans, who already face harsh anti-property laws.

DISPUTE OVER 2015 AGREEMENT

The 2015 agreement was intended to “finally and irreversibly” resolve the longstanding dispute between the two nations regarding Japan’s wartime impressment of Korean women and girls into military brothels. While the agreement was lauded internationally, it was heavily criticised domestically and has become almost as hotly-debated as the matter it tried to resolve.

During his presidential campaign, President Moon Jae-in called for the agreement to be renegotiated. Since becoming president, he has said that South Korea “cannot emotionally accept” the agreement and dissolved the foundation established with Japan’s 1 billion yen contribution. In response, Tokyo slapped sanctions on semiconductor exports to its neighbours, citing security concerns.

The agreement has also become the subject of a four-year long court case in South Korea’s Constitutional Court, with victims claiming that the South Korean government violated their property rights and their right to diplomatic protection and human dignity.

Conversely, Japan has accused South Korea of breaching an international promise by failing to remove the "comfort woman" statue outside its embassy in Seoul. In January 2017, Japan pulled two diplomats from South Korea after a second statue was erected outside its consulate in Busan. Japan has also criticised South Korea for allowing civil rights groups to hold weekly demonstrations outside its embassy in Seoul, arguing that it contravenes the 1961 Vienna Convention which obliges host nations to protect the premises of diplomatic missions.

THE SIGNIFICANCE OF THE PENDING CASE

With the breakdown of the 2015 agreement and the lack of any replacement, the Korean survivors of sexual slavery have few options beyond suing the Japanese government directly or suing the South Korean government, as some of the women have. 

Although the women must overcome the enormous legal hurdle of state immunity, there is precedent for a state’s domestic court to rule against the doctrine. In 2004, the Italian Supreme Court held that Luigi Ferrini had the right to file for damages against the German government for conscripting him to do labour during World War II. [1] The International Court of Justice (ICJ) declared that Italy had breached international law by failing to apply state immunity. But the Italian Constitutional Court later held that “applying state immunity to serious violations of human rights would infringe on victims’ right to a trial” and refused to allow an amendment to the law which would have overruled the Supreme Court in line with the ICJ’s decision. [2]

If the South Korean courts opt to follow Italian precedent, and Japan brings South Korea before the ICJ, the ICJ will no doubt uphold the doctrine of state immunity. Such a precedent will likely create a two-tiered distinction in application of the doctrine, with international courts tending toward upholding the doctrine without exception and domestic courts possibly ignoring the doctrine in human rights cases.

Whatever the ultimate result in this instance, the South Korean case will likely feed the pervasive anti-Japanese sentiment in South Korea, where Japan is seen as a bigger threat than North Korea. This could have repercussions for the surviving relatives of Koreans who sided with the Japanese during its occupation and who already face discrimination. [3]

Notwithstanding that article 13(3) of South Korea’s constitution states that “no citizen shall suffer unfavourable treatment on account of an act not of his own doing but committed by a relative,” the National Assembly has enacted legislation to prevent the descendants of pro-Japanese Koreans retrieving family property if the property was received from the Japanese government. [4] To date, the South Korean government has confiscated around 13 million square meters of land under the law. [5]

That law was enacted in response to public outrage following a different court case in which the High Court ruled that the great-grandson of former Prime Minister Lee Wan-yong could retrieve property given to his great-grandfather by the Japanese government for aiding them in their annexation of the Korean Peninsula.

Many fear that, rather than providing justice to the dwindling number of surviving victims of these historic human rights abuses, the pending case may primarily precipitate further discrimination against fellow Koreans—which would be a tragic result of important litigation.

The next hearing is scheduled for 5 February 2020.

***** 

Legal Citations

[1] Italian Supreme Court judgment No. 5044 (6 Nov. 2003), registered 11 March 2004.

[2] Italian Constitutional Court judgment No. 238 (2014), registered 22 October 2014.

[3] Cho, K. (2013) “Transitional justice in Korea: legally coping with past wrongs after democratisation”, in H. Yang (ed.) Law and Society in Korea. Cheltenham: Edward Elgar Publishing pp.189-224.

[4] Special Act for Reverting the Property of Anti-Nation Pro-Japanese Collaborators to the State 2005.

[5] Linton S. 2010, Post conflict justice in Asia, in M.C. Bassiouni (ed.) The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimisation and Post-Conflict Justice. Brussels: Intersentia Nv pp. 515-753.

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.

LinkedIn