A court in a country ordering another country to pay reparations, does not match judicial precedent.
When the 34th civil division of Seoul Central District Court (presiding judge: Kim Jeong-gon) ruled on the 8th that the Japanese government is responsible for paying national reparations to comfort women victims, it was a result of the removal of the concept of sovereign immunity.
“Sovereign Immunity” dictates that a court within a nation cannot pass judgment on the sovereign actions of another nation. However, the court in this case deemed that “sovereign immunity” is not an immutable value. The court asserted that “Article 27 section 1 of the constitution of Korea and the UN Declaration of Human Rights, among other things, declare that the victims have the right to go to court”. They ruled that “if sovereign immunity is applied to actions that violate human rights, the victims would be stripped of their rights to go to court, preventing them from seeking remedy.”
This line of thinking is supported by some international legal scholars. Professor Kang Pyoung-keun in the Korea University Law School explains that “after the 1950s, in developing nations such as those in South America, people have begun asserting that crimes against morality are exceptions to the concept of sovereign immunity.” In the case where plaintiff Luigi Ferrini sued the German government for forced labor in Germany during World War II (the “Ferrini Case”), the supreme court of Italy ruled in favor of the plaintiff in 2004 when it declared that the Italian courts do have jurisdiction in this case.
However, a significant number of dedicated international law scholars assert that this latest case does not match the judicial precedent of the International Court of Justice (ICJ). When Germany sued Italy regarding the “Ferrini Case”, the ICJ, in 2012, took the side of Germany, saying that “sovereign immunity does apply to cases where the armed forces of one nation infringes upon the lives, health, assets etc. of the citizens of another nation.”
It is quite difficult to find other cases where “crimes against human rights” justified the removal of sovereign immunity. Professor Lee Chang-wee of the University of Seoul explains thusly - “For issues arising from colonial rule, the UK apologized and paid reparations to Kenya in 2013, and the Netherlands apologized and paid reparations to Indonesia for the massacre of its citizens in 2015. Most of these were resolved through domestic lawsuits or over diplomatic channels, and almost no cases proceeded to international lawsuits.” The probability that the comfort women case would go to the ICJ is very low, since the Korean government would most likely refuse to attend, but if it did somehow get to the ICJ, many believe it will end up similar to how the Ferrini Case was handled. “Similar to how Germany won the Ferrini Case,” one specialist says, “it is quite likely that Japan would win.”
In this ruling, the court also ruled that “the comfort women’s rights to seek reparation is not included in the “Agreement Between Japan and the Republic of Korea Concerning the Settlement of Problems in Regard to Property and Claims and Economic Cooperation” in 1965 or the “Japan‑South Korea ‘Comfort Women’ Agreement” in 2015. No representatives of the Japanese government attended this trial on that day. It is said that of the 7 seats allotted to media outlets, the two seats for foreign media were taken by Japanese journalists.
The Chosun Ilbo (January 9th, 2021)