3. Legal responsibility and apology
Professor Park Yu-ha pointed out, “The demand of the Korean Council is a ‘legal responsibility’ and ‘official reparations.’” And “Though the comfort women system was an unethical act, there is no basis for pursuing its liability ‘legally’ unless the system itself was prohibited. It is at least legally impossible to criminalize ‘comfort’, which was different from rape and assault,” she said.
Park, referring to the Claims Agreement between Korea and Japan in 1965 when Korea normalized relations with Japan, said, “Unfortunately, it was the Korean Government that made impossible to make individual claims against Japan because the Korean Government received the claims on behalf of individuals.” “Even if Japan did not have clear sense of apology for its colonial rule at the time of the Claims Agreement, there is no doubt that Japan was trying to compensate for individual claims. For Japan, ‘comfort women’ were ‘individuals who could appear later’. It is clear that the amount of compensation paid at that time was calculated assuming such a situation.” “At the time of the Normalization of Diplomatic Ties between Korea and Japan, Japan proposed to leave individual compensation but the Korean Government received it on behalf of Korean individuals.” “It would be difficult to pursue Japan’s legal liability, if the Korean Government was responsible for extinguishing individual claims at that time.” Park added, “Since the support money that the Korean Government gave comfort women and other victims of the colonial era after 2006, though its name being ‘compensation from a moral standpoint’, was given to each individual from the money which the Korean Government had received from Japan at the time of the 1965 Agreement, the Korean Government amounted to have fulfilled substantially its legal responsibilities.”
The author further argued, “The litigant victim groups’ claim for compensation was based on ‘forced labor’ and ‘human trafficking’, which violated international law at that time. However, since it was ‘private entities’ that ‘directly’ committed them, Japan can be held liable only for creating demand (sometimes tacit approval). In that sense, it is impossible to claim compensation on the premise of legal liability.”
In addition, regarding the report by Ms. Radhika Coomaraswamy, a UN Special Rapporteur in 1996, Park said, “It seems that the rapporteur was not fully aware of the situation surrounding the ‘comfort women’. And Koreans were not aware that the rapporteur showed an understanding of Japan’s position.” In regard to the report of Ms. Gay McDougall, another UN Special Rapporteur in 1998, Professor Park determined, “The report was also submitted based on such misunderstanding.” The professor lamented by saying, “Nevertheless, with support groups in Korea and Japan have used the authority of the United Nations as a proof of their views.”
Park, pointed out, “The Japanese Government apologized and compensated over the comfort women issue,” and lamented, “Such apology and compensation worked only partially in Korea. It is common sense in Korea that ‘Japan has neither apologized nor compensated’ because Korea did not provide an environment where women could profess that they received compensation.” Regarding the Asian Women’s Fund, she said, “The fund was a ‘substantial’ compensation in an ‘indirect’ form,” and explained, “In other words, the fund was a policy prepared as a ‘last resort’ while maintaining the principle that individual compensation can no longer be provided due to the 1965 Agreement. The most important thing is that this is the policy created from serious attitude toward ‘settlement of the past’ listening to comfort women’s dissatisfaction.” Park continued, “The fund was led by the Government aiming for the indirect compensation ‘under the cover of private organization’ in order to overcome the limitations that a direct state compensation was impossible due to the agreement on post-war compensation based on the ‘consent of the Liberal Democratic Party and government officials.” “The purpose was to bear, rather than avoid, responsibility.”
Further, the author said, “The fund was a sincere ‘measure’ by the Japanese Government, and could play a role in providing ‘apology and compensation’ as a national ‘consensus’ at that time.” “It could have contributed to solve the comfort women issue, which was ignored because the idea of ‘revolution of Japan’s society’ by a few supporters was regarded more important than the resolution of the issue. Ironically, the comfort women had no longer been the parties concerned because justice itself became a goal.”
Park pointed out, “The fund was operated with money from the national treasury.” “Japan considered fulfilling its moral obligations, even though it thought that there were no legal obligations. It should be understood that this is why Prime Minister Hashimoto wrote in a letter to former comfort women that Japan was painfully aware of its ‘moral responsibilities.’” “There is no doubt that the compensation by the means of taking ‘moral responsibilities’ contained the feelings of ‘atonement’ of the Japanese Government and people,” the professor said. She added, “In the case of the Philippines, support groups initially opposed the fund, but later accepted it with respect for the opinions of the former comfort women. As for Netherlands, after a letter from Prime Minister was sent and compensation was paid, reconciliation was achieved.” Park concluded that the Foundation ‘Remembrance, Responsibility and Future’ in Germany, which is often referred to as a model of ‘apology and compensation,’ was also to fulfill its ‘moral responsibility.’”