After decades of fruitless campaigning at home and abroad, a group of South Korean women forced into sexual slavery for the Imperial Japanese Army are seeking restitution in a Californian court.
Twelve former “comfort women” were due to file a $24 million civil suit against Japan and a number of Japanese firms on July 1, unless Japan agreed to compensation and an apology, according to Yonhap News Agency.
But, as non-U.S. citizens suing foreign entities, how likely is it that they’ll find satisfactory redress in a U.S. court?Enjoying this article? Click here to subscribe for full access. Just $5 a month.
Not very, according to two U.S. experts in international law that spoke to The Diplomat.
While each was keen to stress that they didn’t have details of the case beyond news reports, they both indicated a low chance of success due to jurisdictional issues.
A likely legal basis for the case is the Alien Tort Statute, a 1789 act that empowers U.S. courts to hear cases where a foreigner has been victimized through a violation of international law.
While antiquated, the act has been used successfully in modern times in cases involving war crimes, torture, and crimes against humanity.
“There were cases being made, and there were judgments for acts that were occurring on foreign soil, but there’s usually some kind of nexus to the United States,” John R. Cencich, a former U.N. war crimes investigator at the Hague, told The Diplomat.
Crucially, however, the U.S. Supreme Court ruled in 2013 that the ATS does not apply to jurisdictions outside the U.S. The case, Kiobel v. Royal Dutch Petroleum Co., involved a number of Nigerian citizens suing several foreign oil exploration companies for alleged human rights abuses.
“What they said was that there is a presumption against the extraterritorial applicability of a United States statue, that our laws are presumed to have no extraterritorial effect — unless of course the statute itself says that it does,” said the California University of Pennsylvania law professor.
But Cencich noted that the court left open the possibility of the act applying in cases with some connection to the U.S., even if the offense did not actually occur on American soil.
“They do kind of dance around it and allude, possibly, that there’s another type of nexus to the United States,” he said, noting ongoing cases involving U.S. military contractors accused of detainee abuse in Iraq.
In the case of the comfort women, the lack of a clear U.S. connection makes legal victory doubtful, Cencich said.
“Based on what I’ve read, I don’t see it happening,” he said. “I don’t see them prevailing.”
A California-based lawyer who specializes in human rights cases was similarly doubtful.
The attorney, who wished to remain anonymous, said that if the plaintiffs want to sue the state of Japan, rather than individuals involved in their abuse, they would have to use the Foreign Sovereign Immunities Act, a remedy only available to U.S. citizens.
Furthermore, to successfully hold Japan liable, they would have to prove that their abuse involved “commercial activities,” similar to when a state is held liable for a crash by the national airline in another jurisdiction.
She said that a previous case taken by her organization on behalf of comfort women more than a decade ago had failed on this basis.
“Just based on that news report, it looks like there would be some very significant hurdles to bringing this kind of a case,” she said. “But it’s not [necessarily] impossible.”
While estimates vary, historians believe up to 200,000 South Korean and other mostly Asian women were forced into prostitution for the Japanese military before and during the Second World War. Recognition of their abuse remains controversial, with Japan arguing the issue was settled under a 1965 normalization treaty signed with South Korea.