Current Events | Resolution for WWII ‘Comfort Women’: Korea, Japan, and the International Court of Justice
In January 2021, South Korea’s Seoul Central District Court ordered the Japanese government to pay 100 million won (approximately $91,000) in damages to each of the twelve plaintiffs in Hee Nam Yoo v. Japan. [1] The plaintiffs in this case were former Korean ‘comfort women,’ an euphemism for women and girls—mostly in their teens and twenties—who were forced into sexual slavery by Japan’s military during the Second World War (WWII). [2] There were between 100,000 and 200,000 such victims from Korea, China, the Philippines, and other territories under Japanese control, subjected to rape, beatings, and torture by members of the military in the name of providing soldiers sexual “comfort.” [3] Since the post-war era, various prominent individuals—ranging from right-wing Japanese historians to the Harvard Law professor J. Mark Ramseyer—have characterized these women and girls as prostitutes who voluntarily joined brothels, denying the brutal reality of their enslavement. [4] Such rhetoric brought about renewed investigations by the United Nations (UN) and International Committee of Jurists in the 1990s, conclusively affirming that these women and girls were indeed abducted and coerced into slavery. [5]
In light of these investigations, the legal status of comfort women has become a matter of contention. The Japanese government, now officially acknowledging that these women were victims of sexual slavery, denies legal liability for the war crimes committed against them and claims it has no legal obligation to survivors. [6] This denial has created diplomatic tensions between Japan and South Korea for decades, leading to an attempt to secure “final and irreversible resolution” through a bilateral agreement in 2015. Korean survivors found that the agreement, which would establish a memorial fund for comfort women, ignored their fundamental demand: Japan’s claiming legal responsibility and paying official reparations. [7] Their litigation efforts have therefore continued past 2015, resulting in the Seoul Court case Hee Nam Yoo v. Japan in 2021. The Japanese government has vowed not to recognize the Hee Nam Yoo decision, condemning it as a violation of Japan’s sovereign immunity. [8] Despite this fraught response, however, the Hee Nam Yoo ruling is significant in two regards: it holds potential for modifying the scope of sovereign immunity under international law, and it reveals a stunning failure in existing international legal frameworks to respond to sexual slavery with the same gravity as other humanitarian crimes.
Sovereign immunity, as invoked by the Japanese government, is a principle in international law wherein a sovereign state cannot be sued in the courts of another sovereign state without its consent. [9] Japan’s arguments are specifically grounded in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), a 2012 International Court of Justice (ICJ) decision. In Jurisdictional Immunities, Italy’s Supreme Court ordered Germany to pay damages to Italian nationals whose human rights were violated by Nazi officials during WWII. The Court argued that the grave humanitarian nature of German crimes justified stripping Germany of its sovereign immunity by applying the jus cogens (“compelling law”) principle of international law. This principle, Italy’s Supreme Court claimed, deemed that accountability for humanitarian crimes should supersede sovereign immunity. [10] In a divided judgement, the ICJ ruled to uphold German sovereign immunity, voiding the Italian Supreme Court’s orders. Sovereign immunity, the ICJ’s majority argued, was a procedural issue of whether or not a court had jurisdiction. The question of sovereign immunity preceded—and was separate from—the assessment of the crime itself. [11] The ICJ therefore concluded it was “unnecessary” to decide whether Germany’s government was liable for humanitarian crimes against the Italian nationals, arguing this issue could not be legitimately considered here because Germany maintained its sovereign immunity. [12]
Japan views its dispute with Korea as analogous to Germany’s dispute with Italy. A potential ICJ case against Korea, Japanese officials imply, would likewise prioritize Japanese sovereign immunity over accountability for humanitarian crimes, voiding the Seoul Court’s legal orders to compensate surviving comfort women. It is also valuable to Japan that the ICJ considered liability to be an “unnecessary” question in the Jurisdictional Immunities judgement. Japan’s government has, in the past, attempted to deny legal liability for crimes against the comfort women. They argued firstly that their military had not sanctioned these women’s enslavement, and secondly, that international law banning rape and sexual slavery did not exist when these crimes were committed and thus, could not be applied to Japan retroactively. Both arguments have weakened considerably over the last thirty years: the former contradicts now-established facts about the Japanese military’s crucial involvement, and the latter contradicts international legal precedent that criminalized war rape well before WWII. [13] With it being increasingly difficult to argue Japan’s government is not legally liable, an ICJ decision similar to the Jurisdictional Immunities ruling would allow Japan to avoid paying further compensation and circumvent the liability question entirely. This would leave Japan vindicated; international legal recognition of the Hee Nam Yoo plaintiffs’ claims would be virtually impossible.
Nevertheless, Japan is not the only party considering filing suit in the ICJ. Lee Yong-Soo, a Korean survivor of Japanese WWII sexual slavery, recently stated her own wish to see “the issue” “resolved” at the ICJ, suggesting that the Jurisdictional Immunities precedent leaves more space for contention than Japan’s legal arguments imply. [14] Indeed, in the Hee Nam Yoo ruling and similar recent precedents, the Seoul Court decided it could strip Japan of sovereign immunity even after the ICJ’s Jurisdictional Immunities decision. [15] Its rationale was grounded in a fundamental difference between the Japan-Korea and Germany-Italy cases: during WWII, Germany and Italy were sovereign nations, whereas Korea was under Japanese colonial rule. [16] Japanese crimes against the Korean comfort women, therefore, are not crimes a state commits against foreign nationals, since Korean sovereignty did not yet exist; these women were subjects of imperial Japan at the time. This adds a new dimension not only to the vulnerability of these women and gravity of the crimes they endured, but also to the nature of Japan’s “sovereignty” in relation to Korea’s, possibly weakening Japan’s attempt to analogize its situation with that of Germany’s. Given this difference in context, the strong ICJ dissents in the Jurisdictional Immunities decision, and the wave of criticism from legal scholars at the decision that has emerged since 2012, a case between Japan and Korea about the Seoul Court’s judgement could offer the ICJ a chance to reconcile its stance on sovereign immunity with the realities of colonial rule and humanitarian crimes.
However, this resolution may not come at all. Japan has considered dropping its plans to sue Korea in the ICJ, instead demanding that the Korean government commit to ignore the Seoul Court’s ruling. Korea has expressed its openness to this compromise, in order for both countries to avoid mounting a costly legal challenge. [17] Indeed, even if both Japan and Korea consent to taking this case to the ICJ, it is wholly possible that the Court decides in a manner very similar to Jurisdictional Immunities. In both of these scenarios, Japan will almost certainly pay no compensation to the twelve plaintiffs of Hee Nam Yoo.
Yet even if the Seoul Court’s ruling is never affirmed by the ICJ, it will remain as a warning of the failure of international humanitarian law to ensure accountability for these victims of sexual slavery. More troublingly, it serves as a reminder of how inaction from international legal bodies may set a dangerous legal precedent for similar cases in the future. Soon after the Seoul Court ruling was announced, survivors and prominent advocate groups declared it “historic.” [18] Perhaps they used this language because, despite seventy years of UN reports and bilateral agreements that would suggest comfort women had been apologized to, this was the first time a court acknowledged Japan’s legal liability for these humanitarian crimes.
At the 1946 Tokyo War Crimes Tribunal, Japan’s equivalent of Germany’s post-WWII Nuremberg Trials, “the crimes perpetrated against these women were not considered,” despite the recognition of rape and sexual slavery as war crimes and crimes against humanity under international law. [19] As a result, members of the Japanese military who had overseen the systematic abuse of these women were never tried for their crimes, denying survivors the chance to seek compensation and accountability from the individuals responsible. Survivors then turned to the Japanese state to seek accountability, suing the Japanese government for compensation during the 1990s in Japanese courts. These, too, were rejected: the courts ruled that under international law, individual could not sue for compensation from a state. [20]
These implementations of international law dismiss any chance for these women to seek legal accountability. They could not seek it from the Japanese nationals who were responsible, nor could they seek it from the Japanese state itself. The lack of legal paths for these women does not simply deny them “resolution,” but also sets a dangerous precedent. Legal scholars have already found that the Tokyo Tribunal’s failure to prosecute rape charges enabled later international tribunals to drop rape charges in Yugoslavia, Rwanda, the Democratic Republic of the Congo, Sierra Leone, and elsewhere, despite the widespread use of rape by war criminals to subjugate women. [21] In the failure to prosecute rape charges, the humanity of victims—almost all of whom are women—is diminished, and those who justify violence against women for colonialism and warfare are emboldened.
As such, the Seoul Court’s ruling for Hee Nam Yoo v. Japan raises critical questions about the current scope of sovereign immunity. It presents the ICJ and international legal community with a chance to reconsider how the principle of sovereign immunity should be reconciled with a commitment to prosecuting humanitarian crimes, particularly when victims are subjects of a colonial state; simultaneously, it exposes a searing failure on the part of international legal bodies to treat rape and sexual slavery with the same gravity as other war crimes. Thus, it is clear that the Hee Nam Yoo decision will remain “historic” regardless of the legal developments that may follow it. Hee Nam Yoo will either represent a stunning failure—on part of the international community and international legal bodies—to address the questions it raises, or serve as a catalyst for substantial legal reform.
[1] Hee Nam Yoo v. Japan (Seoul Central District Court Jan. 1, 2021); Columbia Law School, "Lawsuits brought against Japan by former Korean 'Comfort Women,'" Columbia Law School Center for Korean Legal Studies, last modified 2021, accessed March 3, 2021, https://kls.law.columbia.edu/content/lawsuits-brought-against-japan-former-korean-comfort-women.
[2] The author seeks to clarify the use of the phrase ‘comfort women’ in this article. This phrase (translating to the Japanese term ianfu) originally was a euphemism for prostitutes, enabling officials to grossly misrepresent these women’s sexual enslavement. In the years since WWII, the phrase has resurfaced in United Nations and other official reporting as a means to identify these women and document their experiences for the legal and historical record. It is for this latter purpose that the phrase ‘comfort women’ is invoked here.
[3] Ustinia Dolgopol and Snehal Paranjape, Comfort Women: An Unfinished Ordeal (Geneva, Switzerland: International Commission of Jurists, 1994), 7-8, accessed March 1, 2021, https://www.icj.org/comfort-women-an-unfinished-ordeal-report-of-a-mission/.
[4] Youmi Kim and Mike Ives, "A Harvard Professor Called Wartime Sex Slaves 'Prostitutes.' One Pushed Back.," The New York Times, last modified February 26, 2021, accessed March 2, 2021, https://www.nytimes.com/2021/02/26/world/asia/harvard-professor-comfort-women.html?searchResultPosition=1.
[5] Radhika Coomaraswamy, Report on the Mission to the Democratic People's Republic of Korea, the Republic of Korea and Japan on the Issue of Military Sexual Slavery in Wartime, report no. E/CN.4/1996/53/Add.1 (Geneva, Switzerland: United Nations Commission on Human Rights, 1996), http://hrlibrary.umn.edu/commission/country52/53-add1.htm; Dolgopol and Paranjape, Comfort Women.
[6] id at 14.
[7] Chloe Sang-Hun, "Japan and South Korea Settle Dispute Over Wartime 'Comfort Women,'" The New York Times (New York City, NY), December 28, 2015, accessed March 3, 2021, https://www.nytimes.com/2015/12/29/world/asia/comfort-women-south-korea-japan.html.
[8] Columbia Law School, "Lawsuits brought," Columbia Law School Center for Korean Legal Studies.
[9] Winston P. Nagan and Joshua L. Root, "The Emerging Restrictions on Sovereign Immunity: Peremptory Norms of International Law, the U.N. Charter, and the Application of Modern Communications Theory," The North Carolina Journal of International Law and Commercial Regulation 38 (Winter 2013): 376, accessed March 4, 2021, https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1586&context=facultypub.
[10] Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), 2012 I.C.J. Reports 99, 114 (International Court of Justice Feb. 3, 2012). Accessed March 1, 2021. https://www.icj-cij.org/public/files/case-related/143/143-20120203-JUD-01-00-BI.pdf.
[11] Nagan and Root, "The Emerging," 454.
[12] Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), 2012 I.C.J. Reports 99, 145 (International Court of Justice Feb. 3, 2012). Accessed March 1, 2021. https://www.icj-cij.org/public/files/case-related/143/143-20120203-JUD-01-00-BI.pdf.
[13] Thomas J. Bellows and The United Nations Economic and Social Council, Commission on Human Rights, "An Analysis of the Legal Liability of the Government of Japan for 'Comfort Women Stations' Established During the Second World War," American Journal of Chinese Studies 6, no. 1 (April 1999): https://www.jstor.org/stable/44288602.
[14] Quoted in Kim and Ives, "A Harvard," The New York Times.
[15] Hee Nam Yoo v. Japan (Seoul Central District Court Jan. 1, 2021); Korean victims of forced labor v. Mitsubishi Heavy Industries of Japan, No. 92707 (Seoul Central District Court Mar. 16, 2017). Accessed March 2, 2021. https://seoul.scourt.go.kr/dcboard/new/DcNewsViewAction.work?gubun=44&seqnum=18451.
[16] Dolgopol and Paranjape, Comfort Women, 158.
[17] Shin, Mitch. "Conflict Between South Korea and Japan Surges Again With Court's 'Comfort Women' Decision." The Diplomat. Last modified January 26, 2021. Accessed March 4, 2021. https://thediplomat.com/2021/01/conflict-between-south-korea-and-japan-surges-again-with-courts-comfort-women-decision/.
[18] "We welcome the South Korean Court's historic ruling for resolution of the Japanese military 'comfort women' issue," The Korean Council for Justice and Remembrance for the Issues of Military Sexual Slavery by Japan, last modified January 8, 2021, accessed March 4, 2021, https://womenandwar.net/kr/south-korean-court-rules-japanese-government-to-make-reparations-to-victims/.
[19] U.S. Department of State Office of the Historian, "The Nuremberg Trial and the Tokyo War Crimes Trials (1945–1948)," in Milestones in the History of U.S. Foreign Relations, 2016, accessed March 16, 2021, https://history.state.gov/milestones/1945-1952/nuremberg; Dolgopol and Paranjape, Comfort Women, 17.
[20] Columbia Law School, "Lawsuits brought," Columbia Law School Center for Korean Legal Studies.
[21] Mark Ellis, "Breaking the Silence: Rape as an International Crime," Case Western Reserve Journal of International Law 38, no. 2 (2006-2007): accessed March 2, 2021, https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1335&context=jil.