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  • Writer's pictureAlexander Han

Sovereign immunity is often recognized. Korea can lose the lawsuit, this should be resolved through.

The judgment made recently by Korean courts regarding reparations for comfort women are creating waves. After the Japanese government declared publicly that, in a worst-case scenario, it would take every retaliatory action, the relationship between Korea and Japan, which was recently on a positive trajectory, may face a serious storm. On the 14th, President Moon Jae-in met with Koji Tomita, the departing Japanese ambassador to Korea, and mentioned that “Korea and Japan must restore a constructive and forward-thinking relationship as soon as possible.” However, there is a chance that tensions and dilemma may worsen if the Korean courts decide to release more judgments in the comfort women case, given how little leeway there is for maneuvering in the “force vs force” standoff between the Korean and Japanese governments.

On the 8th, the Seoul Central District Court ruled in favor of the plaintiffs in the lawsuit filed by the comfort women victims against the Japanese government. The courts ruled that Japan must pay 100 million won to each of the 12 victims. They ruled that actions against humanity are not protected by sovereign immunity. The ruling is based on the logic that, similar to the determination by the joint government-civilian council that was convened under the office of the prime minister in August of 2008, “the issue of the Comfort Women is not included in the scope of the rights to claims agreement, and therefore, Japanese responsibilities still remail. If this logic is accepted, it would be possible to sue people who were punished by the demonstrations for independence or those who suffered damages when drafted into the military. The repercussions of this judgment are serious.

Japan publicly mentions retaliations, such as bringing the matter to the ICJ

Since Japan did not appeal, the judgment will become final on the 23rd. Japan publicly mentioned that it will take “all” retaliatory measures if the judgment is executed, including bringing the matter to the International Court of Justice (ICJ). Foreign Minister Toshimitsu Motegi sent a strong message of protest against Foreign Minister Kang Kyung-wha. Foreign Minister Motegi is creating an international public opinion battle by informing the foreign ministers of the nations he is visiting, like Brazil, Senegal, and Kenya. Japan also has the choice to seek help from the United States, after President Joe Biden takes office. This is how serious this potential bomb is in terms of its ability to threaten Korean-Japanese relations.

From Japan’s point of view, this matter is already resolved through the multiple apologies and the comfort women agreement issued so far. On December 28th, 2015, Fumio Kishida, the Foreign Minister of Japan, visited Seoul to read out the formal written apology from Prime Minister Shinzo Abe, issuing a formal apology in the comfort women issue. Japan admitted that the military was involved, and made substantive reparations. Japan paid 1 billion yen to the Reconciliation and Healing Foundation as an implementation to their responsibilities. From the money receive from Japan, the surviving victims and 92 families of the deceased victims were given 4.4 billion won total.

However, after President Moon Jae-in took office, the government overturned the agreement and disbanded the Reconciliation and Healing Foundation. On September 2018, President Moon met with Prime Minister Abe at the United Nations to notify him that the Reconciliation and Healing Foundation will be disbanded, but also said that he would not cancel the comfort women agreement nor demand a renegotiation with Japan. The government’s insistence that it will not cancel the agreement contradicts the action of disbanding the foundation. However, at least in theory, the comfort women agreement is still valid between the Korean and Japanese governments. After the judgment was made public, the Korean Ministry of Foreign affairs mentioned that it will respect the decision by the courts, but it “recalls that the 2015 comfort women agreement is the official agreement between the two nations.”

Japan, for all realistic intents and purposes, admitted to its national guilt in the context of international law through its prime minister’s written apology. Furthermore, both countries clearly agreed to the “final and irreversible resolution” of the comfort women issue. Due to this, the Korean government overturning the mutual agreement is in violation of the “principle of good faith” and “estoppel doctrine”. This political decision also damages national interests. If the courts of Korea execute the judgment, the situation would worsen beyond repair. A wrong decision could boomerang back to deal a heavy blow to the nation.

However, execution of this judgment is not realistically easy. In order to execute the judgment, the courts must seize Japanese assets, but such an action is in direct violation of the Vienna Convention on Diplomatic Relations. Since 2000, courts in the United States, United Kingdoms, Belgium, the Netherlands, Germany, Greece, France, and other nations have dismissed victims’ requests based in large part on the principle of sovereign immunity. In the “Sampson vs Germany” incident at the United States Court of Appeal in 2001, and the “Hwang Kum-ju vs Japan” incident in 2003 are some of the cases that fall into that category.

However, crimes against humanity, like mass genocide and torture, are not protected by sovereign immunity. The apology and payment of reparations in 2013 from England to Kenya and the Netherlands to Indonesia fall into that category. The supreme court of Greece also ruled that sovereign immunity did not apply to the Distomo massacre that occurred in World War II and ruled in favor of the plaintiff. However, this judgment by the supreme court of Greece was opposed by the Ministry of Law, and its execution was paused. The European Court of Human Rights also dismissed the plaintiffs’ request. In the Ferrini case of 2012, the International Court of Justice ruled in favor of Germany, citing sovereign immunity. Thus, if the comfort women case is taken to the International Court of Justice, it is possible that Japan could win.

In October 2012, during the Lee Myung-bak administration, former Special Ambassador Lee Dong-gwan and Deputy Chief Cabinet Secretary Tsuyoshi Saito gathered opinions regarding the preliminary plans, which was to have the ambassador of Japan read a letter of apology from the prime minister out loud in front of the victims, and pay 3 million yen to each victim. However, the ruling party at the time, the Japanese Democratic Party, lost in the following election, so this plan never came to fruition. During this process, Japan was to only admit to moral responsibilities, not legal ones.

Prime Minister Abe, who took a historical revisionist approach to deny history, took an especially hardline attitude, which was shown in such actions as the revision of the Kono Statement. Abe heard that his visit to Yasukuni Shrine in December 2013 had “disappointed” President Obama. After that, Abe no longer made an in-person visit to the shrine, but instead made offerings only. Given how hardline Abe was at the time, the fact that Park Geun-hye’s government was able to make the Japanese government admit to national responsibilities should have been regarded as a successful negotiation.

That was possible due to pressure from the United States and the international community. In 1996 and 1998, after the Coomaraswamy report and McDougall report were submitted, the comfort women issue gained international interest. The United States pressured its ally, Japan, to admit to its responsibilities in the sexual violence that took place during the war. When Vice President Biden visited Korea in December 2013, he stated to President Park that he would assist in the negotiations around the comfort women issue, and did indeed make several requests to Prime Minister Abe for his cooperation. President Obama also persuaded Prime Minister Abe. These were some of the Korea-US collaborations that took place behind the scenes of the comfort women agreement.

On August 30th, 2011, the Constitutional Courts of Korea ruled that the government’s lack of effort in taking action to solve the comfort women problem was unconstitutional. However, when the comfort women agreement was brought to the constitutional courts on December 27th, 2019 to determine its constitutionality, the case was dismissed with unanimous consent. The comfort women agreement was not a treaty, but was a political agreement, and thus was not the target of the determination of constitutionality. When the constitutional courts pulled out, it seemed like this issue was reaching its end.

However, the latest judgment changed all of that. The courts did not even put into consideration the “principle of judicial restraint”. A judge, who is a government employee with a specific role, is not subject to political responsibilities resulting from judgments that are diplomatically erroneous. In developed nations such as the United States, England, France, and Germany, the judicial branch respects that standpoint of the government when making judgments on important diplomatic cases. British courts receive a “document of confirmation from the executive branch” before proceeding with a trial. However, at times, the Korean judicial branch takes its own actions in delicate diplomatic matters.

n Seizing Japanese national assets and other executions of the judgment are not easy to achieve.

Japan is confused by the ever-changing Korean attitude towards the comfort women issue. Because of this, it often refers to the Korean way of altering its attitude and demanding a new set of apologies as “moving the goalpost”. In sports, moving the goalpost would mean that a fair competition is not taking place. This is a serious problem, far more dire than ungentlemanly conduct. We must be keenly aware of the reasons why Japan is constantly criticizing Korea for breaching international laws.

Of course, Japan has made its own mistakes. If Japan had proactively taken care of resolving its problems from the past in the 1965 Korea-Japan Treaty and the Rights to Claims Agreement, things might have been different. This was not just another issue that could be written off as a long-abandoned imperialist era. Far-right politicians often lapse back to the “Japanese colonial rule helped Korea modernize” assertion. They sometimes assert that the comfort women issue was fabricated. It is attitudes like this that cast doubt on Japanese sincerity, despite its many apologies issued by multiple Prime Ministers.

The Korean government and the ruling party are confused. It wanted to repair relations with Japan in time with the start of the Biden administration and the Tokyo Olympics taking place in the summer, but there is no reasonable solution. The ruling party denounced the deep-rooted evil in the judiciary left behind by the previous administration, and citing separation of powers, missed the opportunity to follow up on the judgment demanding reparations for forced labor. It is in that situation that the courts decided to pass a judgment ignoring international law and diplomatic realities. Of course, the international relations lens is not the only viewpoint that is valid in the critique of political and judicial decisions. However, if the courts were joining in on the trend of making political decisions in deference to anti-Japanese sentiments, their responsibilities are significant.

The correct solution to a diplomatic problem is diplomacy. On the 14th, when President Moon handed the letter of credence to Kang Chang-il, the new ambassador to Japan, he stressed that “even if problems arise from time to time, it must not drag the feet of the relations between both nations, which needs to be future-oriented.” A meeting between Korean and Japanese diplomats is expected to take place soon, and the comfort women issue may be discussed there. Matters must not deteriorate any further. The Wisdom of Solomon is needed here.


JoongAng Ilbo (January 16th) by Lee Chang-wee Professor at University of Seoul Law School (Original text)

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