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South Korea’s Dubious Comfort Women Ruling

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South Korea’s Dubious Comfort Women Ruling

Why the court got it wrong on international law

South Korea’s Dubious Comfort Women Ruling
Credit: Ahn Young-joon, Associated Press

A South Korean court made headlines in early January, when it ruled in a claim filed by former “comfort women” that Japan did not have state immunity in the case, and awarded damages to the plaintiffs. The comfort women worked in privately owned brothels servicing the Japanese military during World War II. Japan, invoking state immunity under international law, elected not to appeal the decision, and it was finalized on January 23.

In 1993, the Korean congress enacted a special law stipulating that the Korean comfort women were the victims of forced recruitment by the Japanese government, a charge that Japan denied. Since 1993, the Korean government has officially identified 240 former comfort women. Proponents of pro-North Korea national socialism in South Korea used the issue of comfort women as anti-Japan propaganda.

However, the records of 37 comfort women published on the official website of the Korean Ministry of Gender Equality and Family are revealing. Eleven women stated that they were forcibly recruited by soldiers*, policemen, or local officials; 20 testified that they were deceived or abducted by human traffickers; two said that they voluntarily went to pimps and brothels for money. Several Korean researchers found that some victims had originally testified that their families had sold them to traffickers or pimps, and that comfort women were the victims of deceptive recruitment and coercion by Korean traffickers or pimps rather than the Japanese government. For sharing their findings, the researchers were prosecuted for slander, and in 2017, one of them was fined.

Japan’s position is that the individual claims of comfort women victims were settled with the 1965 Agreement on the Settlement of Problems Concerning Property and Claims and the 2015 Governmental Agreement on the Final and Irreversible Settlement of Problems Concerning Comfort Women Victims. In addition, Japan argues that South Korea failed to fulfill its obligation to grant state immunity.

State immunity is a principle in international law that holds that the exercise of governmental authority is immune from civil prosecution in another country’s courts. As the South Korean special law of 1993 stipulates that comfort women were forcibly recruited by the Japanese government, the legal character of its act was tantamount to the exercise of governmental authority. As such, it must be exempt from civil prosecution in South Korean courts.

The January ruling found that Japan did not have state immunity on the grounds that Japan’s forced recruitment amounts to a war crime or crime against humanity, violating peremptory norms (jus cogens). However, at the level of international law, state immunity is an issue that is entirely distinct from international crimes and/or peremptory norms. Peremptory norms, as stipulated in the 1969 Vienna Convention on the Law of Treaties, apply to the validity of treaties, an issue far removed from state immunity. Peremptory norms do not override state immunity.

After World War II, for example, the Allies established international tribunals to deal with war crimes and crimes against humanity. International crimes have nothing to do with state immunity. The postwar reparations issues including individual claims were resolved in lump-sum settlement treaties, irrespective of state immunity. In 2012, the International Court of Justice (ICJ) found that a 2004 ruling by the Italian Supreme Court – which found that German state immunity did not apply in a case involving Italian forced laborers during World War II on the grounds that the forced labor breached peremptory norms – was in violation of international law. Following the ICJ ruling, the Italian parliament enacted a law suspending the Italian court’s decision in 2013. In 2014, the Italian Constitutional Court ruled this law unconstitutional, but this does not justify the violation of international law.

In 2002, the Greek Special Supreme Court affirmed Germany’s state immunity in a reparations case involving German war crimes in World War II, stating that the principle of state immunity is separate from questions involving peremptory norms and international crimes. In similar cases, the Polish courts and French courts have also granted state immunity to Germany. Those decisions correctly reflected international law.

Because the international community recognized the 1910 Korea-Japan Annexation Treaty, the Allies during World War II did not recognize Korea as a sovereign nation. Consequently, from 1910 to 1945, international law did not apply to the relationship between Korea and Japan. Korea and Japan established diplomatic relations with the Basic Relations Treaty in 1965, and they also entered into the Claims Agreement. The two countries agreed to “fully and finally” resolve all kinds of individual claims other than those covered by an exception clause in the Claims Agreement. Under this agreement, the Korean government received 300 million dollars from Japan to compensate alleged Korean victims. The individual claims of the comfort women do not meet the stipulations of the exception clause of the Claims Agreement, so these claims are considered resolved by the Claims Agreement. In other words, even if it is assumed there was forced recruitment, the Korean government is obliged to compensate the former comfort women. In fact, the Korean government has already compensated the 240 officially recognized comfort women victims.

Japan did not specify the 300 million dollars given to Korea as tort damages, so some argue that it is still possible to demand reparations from Japan regardless of the Claims Agreement. However, the 1965 Claims Agreement was agreed upon to “fully and finally” resolve all claims regardless of the legal characteristic of the 300 million dollars. The question of whether or not the 300 million dollars were tort damages was not an issue when the Claims Agreement was concluded. This is why the relationship between Korea and Japan is “future-oriented.” In 1996, the Korean Constitutional Court ruled that individual claims cannot be pursued against Japan because the Claims Agreement is a lump-sum settlement treaty.

In the case mentioned earlier, the Italian Supreme Court ruled that state immunity did not apply partly because Germany had not compensated the plaintiffs, who had been deprived of their prisoner of war status and forced to perform labor as civilians. In contrast, Japan established the Asian Women Foundation in 1995 to apologize and provide ex gratia compensation to comfort women. Tokyo also reached an agreement with the South Korean government in 2015 on a final resolution of the comfort women issue.

Under that 2015 agreement, the Japanese government provided 1 billion yen to the Korean Reconciliation and Healing Foundation (KRHF), established in South Korea in 2016 to provide compensation to the comfort women, with apologies again. When the KRHF began to provide the compensation, a private organization named the Korean Council for Justice and Remembrance for the Issues of Military Sexual Slavery by Japan (KCJR) persuaded some victims to refuse it. It is reported that more than 30 out of 47 surviving comfort women victims received the compensation. Then, in 2017, a new president was elected in South Korea. The new Moon Jae-in government rejected the Park Geun-hye government’s 2015 agreement and dismantled the KRHF in 2019 without Japan’s consent. Yet that 2015 agreement remains in effect.

In 2020, a comfort women victim’s complaint that a female leader of the KCJR had improperly used donations from ordinary people and government subsidies received widespread media coverage. Though the KCJR leader was elected as a member of the Korean congress, she could not avoid a criminal indictment for fraud and embezzlement.

In its ruling last month, the South Korean court failed to respect international law by wrongfully exercising its jurisdiction. Consequently, South Korea is again igniting conflict with Japan. Certainly, the Korean government is required to take domestic measures complying with the 2015 agreement as well as international law. But this has become politically difficult because activists and politicians have led many Korean people to firmly believe that Japan must compensate the victims. To end the vicious circle of conflict with Japan, the only option for the South Korean government is to agree with Japan to resolve it before an international tribunal in accordance with international law.

Jinyul Ju is a professor at Pusan National University Law School in Korea.

*Author correction. This originally said “Korean soldiers,” which is incorrect. The soldiers were not Korean.