The courts take an anti-Japan adventure. What comes after that?
On January 8th, Korean courts ruled that “Japan must pay reparations to comfort women”. The Japanese government responded, saying that the trial itself is not valid. There is no reason for the victims to appeal, since they won the trial completely. The initial decision will soon be confirmed as the final judgment.
The Comfort Women system was illegal. Then, is it natural to demand reparations? Is the court’s judgment sound? In issues regarding history, especially around the topic of comfort women, we are demanded to behave “as Koreans do”. All Koreans must obey the victim. No other opinion is tolerated.
Many opposing opinions exist in the rest of the world. Poland was hit harder by foreign forces than Korea was. A victim of German civilian genocides once sued Germany in their own domestic courts to demand reparations. In 2010, the supreme court of Poland confirmed that the case was lost. The reasoning was that they had no
jurisdiction to file the suit. French courts, in three separate rulings, dismissed all demands from its own citizens for reparations regarding citizens abducted by Germany. Slovakia, Belgium, and Serbia all ruled against its own citizens. In Greece, the supreme court ruled in favor of genocide victims, but the special supreme court overturned that decision. Did all of these courts turn their backs against the pains of the victims and take the side of unlawfulness and the assailant, Germany?
Let us discuss a hypothetical. Suppose Vietnamese citizens went to their own domestic courts to demand reparations against Korea, claiming to be the victims of Korean genocides. Suppose further that the Vietnamese courts force Korea to stand trial, unilaterally declare the plaintiffs’ victory, and confiscates the Korean government’s assets. Will Korea accept this decision? This is not to assert that genocide is justifiable. This is a discussion about the principle of sovereign equality, where nations cannot put other nations on trial.
Customary international law dictates that the actions of nations are exempt from the legal jurisdiction of other nations’ courts. The intention is to achieve sovereign equality and prevent conflicts between nations. The courts of Poland, France and others did not rule against their own citizens because they condone genocide, abduction, or forced labor. They are protecting the rights of others in order to protect their own rights.
Naturally, this leads to another question. “Does that absolve nations of all responsibilities?” The courts do not have a monopoly on the concept of justice itself. If the courts cannot handle something, diplomacy can. If diplomacy doesn’t work, civilian activities can. These are the ways the world has approached post-war reconciliations. Korea is the only one ignoring this.
Reading the text of the decision, the logic that the Korean courts followed is clear. It states that crimes against humanity that violate peremptory norms (jus cogens) are exempt from customary international law. It is true that this logic is gaining support in the world of academia. However, it is still a fringe theory in the courts around the world.
Italy broke from norms to apply this logic to forced labor lawsuits before Korea did. However, before it did so, it debated this issue extensively. From the first judgment made in 2000 to the determination by the constitutional courts that it was against the constitution in 2014, the issue won and lost in court multiple times. It was brought to court 7 times. It was even brought to the international courts. The International Court of Justice, in 2012, ruled that “violation of peremptory norms and sovereign immunity are separate issues”, and determined that the Italian courts violated international responsibilities. This is the dominant theory in the courts around the world. Korea, in a single decision of “complete victory” by a local court made by a judge in the 40s, overturned this logic in a single move.
At the root of this is public sentiment. If the target is Japan, the more we hit them, the more we support it. The judge is treated like a hero. When an international group of thieves stole an item from Japan, this sentiment resulted in a decision that said that the items do not need to be returned to Japan. The legal basis for this was that it is possible that the items were originally stolen from Korea by the Wokou Japanese pirates at some point in the 14th~16th centuries. This came from an actual Korean court in the 21st century. In issues regarding Japan, we are so easily able to leap over the walls of double jeopardy, statute of limitations, international agreements, evidence, judicial precedent, and customary international law.
A Swedish legal scholar compared the dangers of the logic of peremptory norms to Pandora’s Box. The Korean courts used Japan as a skeleton key to open the Pandora’s Box that is sovereign immunity. What could that lead to?
The Kim Dae-jung government, in 2001, revealed that the US military killed civilians in No Gun Ri during the Korean War. Roh Moo-hyun’s government declared in 2003 that the US Army Military Government was not free from responsibility in the occurrence of the Jeju April 3 Incident and the process of how it was quelled. The National Committee for the Investigation of the Truth, created by the Roh government, declared the American army as the perpetrator of the Daegu Riots, and revealed that the American Army was in command of the suppression operation of the Yeo-Sun Incident in 1948. The number of incidents committed by the US army during the Korean War, as revealed by the Committee, was 249. Of these, regarding particularly significant incidents, the Committee clearly indicated that war crimes and national responsibilities are within the scope. 202 other US army-related incidents that could not be revealed at the time were handed off to the 2nd Truth and Reconciliation Committee under Moon Jae-in’s government.
The legal argument that “peremptory norms supersede all other laws” cannot be applied to only Japan. Certain groups within Korean society would not shy away from applying this to the USA. The USA is known for its complete adherence to the preservation of sovereign immunity. Let’s see what would happen if we brought the US to a Korean court and attempted to seize the US government’s assets in Korea. The Korean court’s adventurous spirit has reached its logical destination against Japan, an easy adversary. It now faces a whole new level.
The Chosun Ilbo, January 13th 2021 (Page 34)
An opinion piece by their deputy administrator, Sonu Jong
https://www.chosun.com/opinion/column/2021/01/13/7DWK4IJG5NAF7KH2SDBE75DXWY/ (Korean original)