[Column] The comfort women settlement deviates from international law

Posted on : 2016-01-12 17:51 KST Modified on : 2016-01-12 17:51 KST
Japanese Minister for Foreign Affairs Fumio Kishida
Japanese Minister for Foreign Affairs Fumio Kishida

Based on my experience as a judicial researcher at the International Criminal Tribunal for the former Yugoslavia (ICTY) and as a university professor in international criminal law, the recent settlement reached by the South Korean and Japanese governments on the issue of the comfort women is seriously tainted by its disregard of the issue’s connection with international crime. However, not enough is being said about this point.

South Korea, Germany, and Japan are all state parties to the Rome Statute of the International Criminal Court. Since all three countries ascribe to the principle of “nulla poena sine lege” for their criminal code - that is, there can be no punishment without a corresponding law - they all had to pass domestic laws in order to implement the Rome Statute.

Given that Germany and Japan were both aggressors in World War II, it would have been natural for them to have adopted the same attitude in writing legislation to implement the Rome Statute, and for South Korea to have taken a different attitude. But in reality, South Korea and Germany both passed special criminal laws designed to prosecute international crimes.

Japan, in contrast, passed legislation to cooperate with the International Criminal Court, but not legislation for prosecuting international crimes.

Japan’s legislation for cooperating with the International Criminal Court does not contain a detailed stipulation of international crimes. Japan was worried that, while the law was being drafted, there would have been a discussion about past international crimes like sexual slavery and forced labor, about the responsibility of commanders, about the problematic nature of Japan’s decision to exempt the head of state from responsibility, and, most importantly, about the criminal responsibility of the Japanese Emperor, an issue that is taboo in Japan.

The Rome Statute codifies the Nuremberg principles, namely, that an individual is not absolved of guilt simply by virtue of being the head of state, as well as the guilt of command, which is to say that even the head of state can be held guilty as a commander for the crimes committed by his or her subordinates. Even in its legislation, Japan avoided its history, in contrast with Germany.

In their joint statement, the governments of South Korea and Japan emphasized the fact that the issue of the comfort women had been “finally and irreversibly” settled. By using the phrase “finally and irreversibly,” the two governments are promising that, henceforth, they will not take any action whatsoever that departs from the terms of the settlement.

Considering that the terms of the announcement are largely about the state responsibility, it also means that the two governments will not inquire into responsibility according to international law (which is different in nature from state responsibility), or, in other words, the criminal guilt of individuals for international crimes.

International criminal law deals with the guilt not of states but rather of individuals who have committed international crimes. Reports submitted to the UN’s Sub-Commission on the Promotion and Protection of Human Rights also called for the prosecution of individuals guilty of crimes connected with the comfort women.

But now the two governments have gone beyond their previous apathy for the international criminal law approach and have officially stated that they will not even hold any governmental discussion on the issue in the future.

While the state has the right to prosecute crime, the exercise of this right rests on the will of the government. If South Korea “finally and irreversibly” surrenders the international criminal law approach in regard to the issue of the comfort women, Japan will not have to worry about the South Korean government making claims before the UN or human rights organizations that the comfort women system involved international crimes.

International crimes cause severe psychological trauma for the victims, the severity of which can be exacerbated by those victims’ age, sex, and weakness. When a state refuses to see justice served and absolves the perpetrators of their crimes, the victims’ pain becomes even worse.

Around 200,000 South Korean women became sex slaves, suffering things that cannot be expressed in words, and only a small number of them returned home alive. Even if it is feasible to prosecute the guilty parties, the government should not be unilaterally entering talks about abandoning the right to prosecute crime.

The right to prosecute crime is the preeminent example of a state’s sovereignty. The South Korean constitution states that the government cannot by itself make agreements with other countries in regard to such an important issue. In other words, the settlement reached by South Korea and Japan infringes Article 60, Clause 1, of the Constitution, which gives the National Assembly the right to pass and ratify any treaties that would restrict the national sovereignty.

Furthermore, international criminal law prevents individual countries from abandoning the prosecution of international crimes. There is no statute of limitations on the criminal responsibility for international crimes, and no pardon can be given. Consequently, [South Korea and Japan’s settlement] constitutes a violation of international criminal law.

By Lee Yun-je, Ajou University law school professor

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