Japan Cannot Claim Sovereign Immunity and Also Insist that WWII Sexual Slavery was Private Contractual Acts

Article by by Dr. Ethan Hee-Seok Shin and Stephanie Minyoung Lee click to original article

In South Korea, two conflicting decisions by the Seoul Central District Court are testing the limited exceptions to sovereign immunity in a historic case of sexual violence in armed conflict. On April 21, a three-judge panel rejected a lawsuit filed against Japan by Korean victims of wartime sexual slavery and upheld Japan’s jurisdictional immunity as a foreign State from civil claims in South Korean courts. The decision came barely 100 days after a Jan. 8 decision by a separate panel in the same court that denied Japan’s sovereign immunity for crimes against humanity and ordered Japan to compensate a separate group of victims for the same violations.

The plaintiffs in both cases are known as “comfort women,” a dismissive code word used by Japanese military authorities and collaborators to describe the women and children whom they trafficked and detained in facilities for mass sexual violence and reproductive harm before and during World War II. This systematic violence was implemented throughout large swathes of Japanese-held territories and front lines – from Micronesia to India – between 1931 and 1945. The “comfort women” system is the largest known case of modern State-sponsored human trafficking and sexual slavery and an unresolved atrocity of the Second World War.

The two panels of judges divided starkly over (1) whether an exception to sovereign immunity for grave violations of human rights as peremptory norms (jus cogens) was established under customary international law, (2) the impact of sovereign immunity on constitutional rights, and (3) a controversial 2015 oral settlement imposed by South Korean and Japanese bureaucrats upon elderly victims who rejected the terms. The April decision comprehensively analyzed the “restrictive” theory limiting sovereign immunity for tortious governmental or private commercial acts, but both decisions glossed over details in determining whether the “comfort women” system constituted governmental acts. Meanwhile, Japanese officials and politicians have characterized the system as non-military and voluntarily contracted labor, which undermines the Japanese government’s claims to “sovereign” immunity.

We are working with 93-year-old survivor Lee Yong-soo, who has petitioned South Korea and Japan to submit all related disputes, including sovereign immunity and substantive crimes, to the International Court of Justice (ICJ), the United Nations’ highest court. Her claims were part of the civil case dismissed in April and will be appealed through litigation counsel to the Seoul High Court. The appellate court’s decision may shed light on the larger Korean judiciary’s stance on sovereign immunity, which is far from a settled doctrine, as victims of past and recent atrocities and injuries continue to seek redress in domestic courts.

Japan’s Positions on Governmental Involvement and Treaties

Throughout cases filed by “comfort women” over the past three decades in the courts of Japan, the United States, and, most recently, South Korea, Japan has advanced inconsistent arguments regarding the government’s role and individual claims for redress. Publicly, the Japanese government denies that the “comfort women” system comprised sexual slavery for which Japan’s imperial military was responsible, but it expediently admits governmental responsibility in order to claim sovereign immunity when confronted with civil lawsuits.

Under the 2004 U.N. Convention on Jurisdictional Immunities of States and their Property (U.N. State Immunity Convention), neither appearing nor appealing a case to argue jurisdiction waives sovereign immunity, but Japan refused to appear in both cases and declined to appeal the January decision. Subsequently, the Japanese Foreign Ministry posted statements that the “forcible” removal of victims by Japanese military and government authorities “could not be confirmed,” and Prime Minister Suga Yoshihide and Education Minister Hagiuda Kōichi approved textbooks deleting the word “military” as an adjunct to “comfort women,” to avoid characterizing the system as nonconsensual sex work commanded over by Imperial Japan.

At the same time, however, Tokyo claims that the cases violate sovereign immunity and previously argued in U.S. courts that the “comfort women” system constituted governmental acts. In 2000, 15 survivors from South Korea, Taiwan, China, and the Philippines sued Japan in the D.C. District Court under the Alien Tort Statute, asserting the commercial activity exception in Section 1605(a)(2) of the 1976 Foreign Sovereign Immunities Act (FSIA), which codifies the “restrictive” theory of sovereign immunity. The U.S. federal court agreed with Japan’s argument that trafficking victims and operating “comfort stations” did not constitute private commercial activity and instead formed a “premeditated master plan” better characterized as a “war crime or crime against humanity.” This seemed to blend the “purpose” of the acts with their “nature,” the latter being the determinative factor under Section 1603(d) of the FSIA, underscoring the difficulty of distinguishing the inquiries.

On appeal, the D.C. Circuit did not reach that question and dismissed the suit on the separate grounds that the FSIA does not apply retroactively. After the Supreme Court remanded the case in light of Republic of Austria v. Altmann (2004) confirming the FSIA’s retroactive effect, the D.C. Circuit dismissed the case as a non-justiciable political question concerning post-war treaties with the victims’ countries under the foreign policy purview of the executive branch.

Japan maintains that “comfort women” claims were waived under those treaties, although they were concluded in the 1950s-70s, decades before Kim Hak-sun became the first survivor to come forward in 1991. Japan initially denied involvement in the “comfort women” system, then reversed itself and acknowledged it for the first time in 1992, after Japanese historian Yoshimi Yoshiaki published incriminating records. Concurrently, survivors from South Korea, China, Taiwan, the Netherlands, and the Philippines began suing Japan in Japanese courts, which dismissed the cases on treaty waiver grounds, with one exception: a 1998 ruling by the Shimonoseki branch of the Yamaguchi District Court that held Japan partially responsible but was later reversed.

While those cases were pending, Japan’s Chief Cabinet Secretary Kōno Yōhei issued a statement expressing remorse to the victims, acknowledging that Japan’s government was directly or indirectly “involved,” and promising to record the history in perpetuity. This statement, unlike other addresses from Tokyo, was not approved by Japan’s Cabinet.

Subsequent administrations, most notoriously under former Prime Minister Abe Shinzō, have effectively hollowed out the 1993 Kōno Statement and rendered it an equivocal “apology” through prolonged, expensive efforts to suppress memorials and archival projects around the world, which have spawned revisionist scholarship in America. In 2017, Tokyo filed an amicus brief with the Supreme Court in an unsuccessful case seeking the removal of a “comfort girl” statue donated by one of our organizations to the City of Glendale, California, as within Japan’s “core national interest,” but SCOTUS denied certiorari, preserving the statue.

2015 Announcement

Following a 2011 ruling by South Korea’s Constitutional Court that the South Korean government’s failure to seek compensation for the victims violated the mandate to provide diplomatic protection to citizens, Seoul initiated contact with Tokyo about resolving the dispute, but officials failed to adequately inform the victims and include them in ensuing talks.

On Dec. 28, 2015, the foreign ministers of Japan and South Korea held a joint press conference and took turns announcing what they declared to be a “final and irreversible settlement.” The deal is essentially a bifurcated gentlemen’s agreement and was never merged into a single integrated, signed document. It was accompanied by Japan’s payment of approximately $8.3 million for South Korea’s creation of a victims’ trust fund and a private call where former Prime Minister Abe reportedly apologized to South Korean President Park Geun-hye for the victims’ suffering.

Upon learning about the 2015 Announcement, many of the victims and South Korean citizens rejected its problematic terms, discussed further below. U.N. human rights bodies have also condemned the 2015 Announcement as falling short of recommended guidelines. Amid widespread public backlash, the first of the Seoul Central District Court cases, filed in 2014, gained traction. The second case was filed in 2016 by Lee Yong-soo and other survivors.

April’s Decision and the Landscape of Sovereign Immunity

The April 21 decision (2016 Ga-Hap 580239) surveyed the history and practice of sovereign immunity and held that neither a tort exception nor a jus cogens exception is established under customary international law. The panel also rejected arguments that the trafficking and management of “comfort stations” were private commercial acts or that their character as human rights violations transformed them from governmental acts entitled to default immunity.

Beginning with The Schooner Exchange v. M’Faddon (1812), the panel reiterated the origins of sovereign immunity as an absolute doctrine under which States cannot be sued in foreign courts, extending from the principle that governments cannot be sued in their own courts for exercising “crown” or “sovereign” power. In the international context, sovereign immunity maintains comity and reciprocity and recognizes the difficulty of executing judgments against a foreign State’s assets. But in the late 19th century, as States waded into global commerce through owning merchant ships and industrial trade ventures, courts in various countries began allowing claims against foreign governments for acts analogous to private business transactions (acta jure gestionis), as distinct from acts exercised through public power (acta jure imperii).

As the panel of judges acknowledged in the April decision, this “restrictive” theory of limiting State or sovereign immunity is now established practice. The U.S. State Department first recognized, in a 1952 letter by acting Legal Adviser Jack Tate, the private commercial exception as a matter of executive discretion, then supported the 1976 FSIA, which shifted decision-making to the courts and codified other carve-outs. The FSIA includes a terrorism exception that extends to acts abroad, through provisions enacted after the 1988 Pan Am 103 bombing over Lockerbie, Scotland, that were subsequently amended, as well as exceptions for waiver, expropriation, and tortious personal injury and property damage within the United States.

Similar tort exceptions are also set forth in the 1972 European Convention on State Immunity (ECSI) and the 2004 U.N. State Immunity Convention, modeled after the ECSI but with key differences. Paradoxically, common law jurisdictions have tended to codify the “restrictive” theory, whereas civil law jurisdictions, including South Korea, have largely recognized exceptions through rulings.

In the panel’s opinio juris, the tort exception is not a “constant and uniform” practice under the “restrictive” theory, based on its review of domestic legislation and international jurisprudence; statistically, out of 193 U.N. member States, only 22 States (11.3 percent) have ratified the U.N. State Immunity Convention and only 37 States (19.2 percent) in all have adopted the tort exception through that convention, the ECSI, or domestic legislation. Plaintiffs’ counsel focused on the tort exception to argue that customary international law is trending away from sovereign inviolability and did not expressly argue for a jus cogens exception, but the panel took up the latter issue in view of a 2012 ICJ decision as clearly relevant authority on tortious (more accurately, atrocious) acts committed within the forum State in a wartime context.

The ICJ dispute arose after Italian national Luigi Ferrini obtained judgments and enforcement measures against Germany in Italian courts for forced labor under the Third Reich, with Greece intervening after its Supreme Court also denied immunity to Germany for Nazi massacres in the village of Distomo. In a 12-3 decision, the ICJ ruled: (1) the tort exception does not apply to “acts committed by the armed forces of a State (and other organs of that State acting in co-operation with the armed forces) in the course of conducting an armed conflict”; (2) the procedural rule of sovereign immunity does not bear upon the substantive legality of conduct under jus cogens; and (3) while Italy argued that domestic courts were a “last resort,” the existence of “effective alternate means of redress” is not a “precondition” for sovereign immunity, which is entirely separate from a State’s substantive obligation to make reparations.

The panel of judges then determined that the mobilization and recruitment of “comfort women” by State organs of Imperial Japan, including by the governor-general of Korea, then a subjugated colony and not a site of active hostilities, were “in the course of conducting an armed conflict” and governed by the ICJ judgment barring a tort exception for wartime governmental acts.

January’s Decision and a Jus Cogens Exception

The Jan. 8 decision (2016 Ga-Hap 505092) by a different panel of the same Court was widely recognized for declaring that sovereign immunity is not a jurisdictional bar to crimes against humanity and jus cogens violations. By not fully engaging with State practice, however, including the 2012 ICJ decision and international rulings that uphold sovereign immunity even in extreme cases such as torture, the reasoning is vulnerable to criticism.

The panel first determined that Imperial Japan’s operation of the “comfort women” system was governmental activity, and not private or commercial, because (1) it aimed to regulate the military as a State organ, (2) the non-military State actors involved did not amass economic profits, and (3) the system necessitated policies such as amending laws and budget allocations.

Departing from the ICJ’s holding that jurisdiction and criminality are separate queries, the panel then ranked the procedural law of sovereign immunity as an inferior norm that must be construed to realize substantive rights under higher peremptory norms (jus cogens). It determined that sovereign immunity would effectuate the “unreasonable and unjust outcome” of impunity for crimes arising from Japan’s illegal occupation of Korea. These violations ranged from mass rape to forced sterilization to torture, which were clearly prohibited under contemporary customs of international law (under the 1907 Hague Convention, 1921 Anti-Trafficking Convention, 1926 Slavery Convention, 1930 ILO Convention (no. 29), and Charter of the Tokyo War Crimes Tribunal), and fulfilled the criteria for crimes against humanity.

With this decision, the panel added South Korea as the third country in which national courts have recognized a jus cogens exception, together with the Italian and Greek courts in Ferrini and Distomo.

Procedural Rights under Constitutional Law and Alternate Remedies

In both decisions, the panels picked up on subsequent history to Ferrini concerning constitutional guarantees to procedural rights. After the ICJ’s ruling, Italy acceded to the U.N. State Immunity Convention and passed implementing legislation to rescind the judgments against Germany, but the Italian Constitutional Court struck down the law in 2014 as violating the right to trial.

Following the Italian court’s lead, the January decision in Seoul found that sovereign immunity for crimes against humanity violates the fundamental right to trial under the South Korean Constitution, as well as Article 8 of the Universal Declaration of Human Rights. In contrast, the April decision used a balancing test and declared immunity to be a “minimal infringement” on due process that is “necessary and proper” for respecting international law. This rationale seemed to echo the European Court of Human Rights’ narrow decision in Al-Adsani v. UK (2001) that conferring sovereign immunity in cases brought by torture victims does not violate the principle of necessity and proportionality; the Ninth Circuit in the United States has also rejected a jus cogens exception for torture by a State.

The two panels also split over civil lawsuits as a “last resort” in relation to the 2015 Announcement. The ICJ held that the question of sovereign immunity is agnostic to whether alternate remedies exist because national courts are “not well-placed to determine” the point when “prospects for an inter-State settlement [a]re considered to have disappeared.” But the April decision relied upon the 2015 Announcement as a past alternate remedy to justify immunity, although the victims’ trust fund has been liquidated and the plaintiffs rejected its terms.

These terms warrant further scrutiny, including the implied content-based restriction aimed at a “comfort girl” statue by the Japanese embassy in Seoul, which may conflict with the Vienna Conventions, as one of us previously wrote, and the vague prior restraint that both States “refrain from accusing or criticizing each other.” Two months after the 2015 Announcement, upon questioning by the U.N. Committee on the Elimination of all Forms of Discrimination against Women (CEDAW), Japan’s deputy foreign minister declared there was “no evidence” confirming Japan’s government or army forced “comfort women” into sex servitude. From a statist and surface perspective, the 2015 Announcement may be said to enhance comity, but realistically it has accelerated Japan’s distortion of facts and deepens discord with South Korea; it further disregards victims from China, North Korea, Taiwan, the Philippines, and other countries who were forcibly taken and sexually enslaved.

Lump-sum settlements are customary in the aftermath of war, as the Ferrini judgment noted, and have limited symbolic meaning for past colonization. But such concessions presume that the offending State has committed some wrongdoing, which remains wholly disputed by Japan.

Trafficking and Detention in “Comfort Stations”

These decisions, like the lower courts in the Hwang case, fixated on the harms committed at “comfort stations” as the gravamen of the claims and determined the entirety of the system to be governmental acts. The spectrum of acts encompassed by the sexual slavery and trafficking system, however, are difficult to shoehorn into the existing framework for sovereign immunity and “restrictive” theory exceptions.

The January decision recounted the facts for each of the 12 plaintiffs, who were abducted through physical and non-physical force within Korea by agents of Japan’s colonial administration under executive orders from Tokyo. Victims were then transported via trains and ships to China, Manchuria, the Pacific Islands, and Japan. At “comfort stations,” Japanese soldiers purchased tickets from civilian operators to gain access to victims and inflict multiple rapes, with the rates and methods of payment controlled by the Japanese government. Medical personnel were engaged to administer forced gynecological exams and arsenic injections for sexually transmitted diseases. One victim was infected with syphilis and forced into mercury treatments that left her infertile; another was forced into pregnancy and had to leave a baby behind. Victims were regularly beaten, and one was nearly burned to death. The facilities were surrounded by iron bars or barbed electrical wire, and victims witnessed other detainees committing suicide or being shot after attempts to escape.

Taking each act separately, the abductions in Korea could be argued under the tort exception, which U.S. courts have applied to the assassination of dissidents by a foreign State’s agents; while fraudulent recruiting and operating stations resemble private and illicit pecuniary exchanges. The larger illogicality is that those acts potentially fall under the “restrictive” exceptions, but the grave human rights violations at the stations remain cloaked in immunity, based on the dubious premise that such conduct is innately of a governmental type.

Japan’s War on Facts in the Pacific Theater

Japan is not the first State to refuse to appear in a foreign court, but if it had done so here, it likely would have argued the “comfort women” system constituted governmental acts. This would have significantly compromised its official declarations in the court of public opinion that the system was consensual, contractual, and non-governmental, and that the “forceful taking away” of victims by military or State authorities as “sex slaves” contradict the “historical facts.”

In fact, the imperial military used terrorizing physical tactics against victims in countries such as China and the Philippines and commandeered local culture in colonies such as Korea and Taiwan through trafficking and grooming with deceptive offers of jobs, education, and gifts. Many girls could not attend school and were taught to commit suicide after sexual assault in order to preserve family honor, the euphemism for rape in that era, which ensured their long-term silence and invisibility. Racial discrimination permeated the system to the degree of forcing victims to take Japanese names and charging higher fees for access to “comfort women” victims who were ethnically Japanese. In a singular 1936 case, the Nagasaki District Court convicted Japanese civilians under domestic law for trafficking Japanese victims to Naval “comfort stations” in Shanghai, but equal protection was not extended for victims from colonized or occupied territories.

Researchers emphasize that conflict-related sexual violence spans policy and practice, and the “comfort women” system reinforced a staggering military culture of sexual and gender-based violence, including against Red Cross nurses in Hong Kong, Dutch boys in Indonesia, and Tamil women whose families were forced laborers on the Thai-Burma railway. Some of those atrocities, including at Nanking, were prosecuted in the Tokyo War Crimes Tribunal, but specific “comfort women” cases were prosecuted only in the subsequent trials at Batavia, where Japanese military personnel and civilians were sentenced for the questionably named war crime of “enforced prostitution” of Dutch victims. Notably, those convictions were founded upon a range of indicia that the victims’ servitude was involuntary, including poverty, deception, and inhumane conditions in the “brothels,” regardless of any profits earned.

In hindsight, the Allied Powers’ failure to prosecute the multi-national sexual slavery and trafficking system as an imperial military institution – despite substantial evidence introduced in the Tokyo War Crimes Tribunal and mentioned in the Judgment – has contributed to the present situation. In the 1990s, “comfort women” testimonies, amid the U.N.’s recognition of mass sexual violence during genocides in Rwanda and the former Yugoslavia, led to the inclusion of sexual slavery, rape, enforced prostitution, forced pregnancy, and enforced sterilization as war crimes and crimes against humanity in the Rome Statute of the International Criminal Court, but that tribunal lacks retroactive jurisdiction. Elderly women survivors have had to turn to domestic courts, absent a satisfactory resolution through diplomatic or political channels from which they are traditionally excluded, as the January decision observed.

There may not be a bright-line rule for a “last resort,” but there is a judicial principle of exhausting all remedies. Courts upholding sovereign immunity for WWII-era violations not addressed in the war crimes tribunals, including claims brought by Holocaust survivors and their heirs, are maintaining this lacuna in international law.

Appropriate Remedy for Resolution

Time is running out for the last survivors, an estimated 100 known individuals across the victimized countries today, including 14 registered survivors in South Korea. For the past 30 years, the “comfort women” have called for Japan’s government, as a whole, to issue a direct and personal apology and acknowledgement that it committed crimes under international law, and to disclose and preserve the truth through education and memorials. None of these have been fulfilled by the government of Japan.

In the meantime, survivors have pursued civil claims for monetary reparations as judicial recognition of Japan’s governmental responsibility, but, in the end, national courts have limited utility. After the January decision, Japan refused to comply with the order, and enforcing the judgment against Japanese assets in South Korea requires overcoming a separate, more stringent jurisdictional privilege granted to a foreign State’s assets against enforcement measures. Simultaneously, Japan’s political leaders have urged Tokyo to sue South Korea at the ICJ. This prompted survivor Lee Yong-soo’s appeal to both States to submit outstanding issues for the ICJ’s adjudication through a proposed special agreement that sets forth discrete procedural and substantive questions, including that of Japan’s liability for military sexual slavery under international law, which she has delivered to their respective heads of State.

The ICJ is a pragmatic recourse for many reasons, but there remains an untried option consistent with comity and human rights. The governments of Japan and South Korea, as one of the countries representing “comfort women” victims, can signal a reset of diplomatic relations through initiating talks for a new agreement. To be successful, the negotiations must include the survivors at the table. Without the survivors’ participation, any resulting deal will be perceived as inadequate and continue to hinder cooperation, as is the hapless fate of the 2015 AnnouncementFor negotiations to happen at all, however, it is crucial for President Joe Biden, who, as Vice President, backed the 2015 Announcement, to press Tokyo about resolving its responsibility for “comfort women” in indisputable good faith, beginning with a direct apology and acknowledgement to the survivors that is affirmed by Japan’s Diet or Cabinet.

Ultimately, realizing this remedy may be one of renewing political will, as with other atrocities, and public opinion favors the aging victims, who are living the daily ordeal of seeing their rapes denied by Japan. Before May’s summit between President Biden and South Korean President Moon Jae-in, House Speaker Nancy Pelosi reiterated her desire for justice and her support of House Resolution 121, which passed unanimously in 2007 and urges Japan to accept historical and legal responsibility in a “clear and unequivocal manner,” as does a similar resolution by the European Parliament.

Although the history of “comfort women” is complex, dating back to the first “comfort stations” in 1930s Shanghai, we believe that reconciliation can begin with the straightforward step of including the surviving victims and seeking their approval in the redress process. Only then can any resolution be described as a lasting one for these historic gendered crimes.

Image: A group of Asian women who survived being forced into brothels set up by the Japanese military during World War II protest in front of the Japanese Embassy 18 September, 2000, in Washington DC, demanding an apology for their enslavement. AFP PHOTO/Joyce NALTCHAYAN/AFP via Getty Images