hankyoreh

Lee Na-young, president of the Korean Council for Justice and Remembrance for the Issues of Military Sexual Slavery by Japan, is seen standing in front of the Seoul Central District Court in Seoul’s Seocho District on the morning of June 21, when the court ruled against the surviving “comfort women” in their second damages lawsuit against the Japanese government. Lee was expressing the position of a network of organizations that support the former comfort women, who were forced to work at military brothels by the Japanese imperial army. (Kim Myoung-jin/Hankyoreh)

South Korean courts are coming to different conclusions in damages lawsuits filed against the Japanese government by the surviving “comfort women,” who served as sex slaves for the Japanese imperial army in World War II.

The comfort women survivors are baffled by the fact that they only prevailed in one of two lawsuits. Another confusing factor is that courts have reached different decisions about whether Japan should cover legal costs and whether its assets in Korea should be disclosed.

The conflicting rulings in the first and second lawsuits are based on how the courts view sovereign immunity (a customary principle in international law under which sovereign states cannot be tried in other countries’ courts), South Korea and Japan’s 1965 agreement to settle outstanding claims, and their 2015 comfort women agreement.

The first comfort women lawsuit was decided this past January, when Kim Jeong-gon, then senior judge in the 34th Civil Division at the Seoul Central District Court, found in favor of 12 former comfort women, including the late Bae Chun-hee. Kim concluded that the principle of sovereign immunity could not be applied to Japan and recognized the comfort women survivors’ right to claim damages.

“The principle of sovereign immunity is not fixed and eternal, but is constantly revised according to changes in the world order. That principle was not shaped to give states that have caused great harm to individuals from other countries a chance to hide behind theory and avoid compensation,” said Kim, the judge in the case. In short, Kim found that sovereign immunity cannot be regarded as an absolute principle.

Kim further said that since the comfort women survivors are requesting “compensation for crimes against humanity,” their individual right to claim damages was not exhausted by South Korea and Japan’s claims agreement. As for the 2015 comfort women agreement, he said that “the state cannot dispose of individual rights without being entrusted to do so by the victims.”

But the second lawsuit was dismissed in April by Min Seong-cheol, senior judge in the 15th Civil Division at the Seoul Central District Court. Min said that the 20 plaintiffs, including former comfort woman Lee Yong-soo, “cannot claim damages from Japan.”

Min came to the opposite conclusion from Kim, the judge in the first lawsuit. “Japan’s sovereign immunity must be acknowledged because international customary law doesn’t change just because we think that sovereign immunity should be rejected in the case of illegal actions,” Min said in his verdict.

Min cited cases in which lawsuits that several European countries had filed against Germany for illegal actions in World War II were dismissed by the International Court of Justice on the grounds of sovereign immunity.

Another reason that Min cited for his decision was that “a substantial number of the victims were basically compensated” by the comfort women agreement.

The reason that opposite rulings are being reached on the same matter is partly because the judges’ interpretations of legal jurisprudence are sharply at odds, and partly because these are the first lawsuits that comfort women survivors have filed in South Korea.

Korean victims of forced labor had been filing damages lawsuits against Japanese companies for years when the South Korean Supreme Court finally sided with them in an en banc ruling in 2018. Since then, district courts have generally ruled in favor of forced labor victims.

In contrast, the first comfort women lawsuit — the case, mentioned above, that was tried by Kim Jeong-gon — wasn’t filed until 2015.

The courts’ conflicting opinions also extend to questions about legal costs and asset disclosure.

Nam Seong-woo, a judge in the 51st Civil Division of the Seoul Central District Court, recently ordered the disclosure of a list of assets held by the Japanese government in South Korea so that the plaintiffs, who won the first lawsuit, could collect their damages.

In his ruling, Nam didn’t acknowledge Japan’s sovereign immunity. “If sovereign immunity is acknowledged for serious infringements of human rights such as torture, rape, and murder perpetrated by the state, it would threaten the shared interests of the international community and might instead damage friendly relations between states,” the judge said.

The exact opposite conclusion was reached in March by Kim Yang-ho, senior judge in the 34th Civil Division at the Seoul Central District Court. Kim said that because of sovereign immunity, the Japanese government couldn’t be charged legal fees in a case it had lost.

By Shin Min-jung, staff reporter

Please direct comments or questions to [english@hani.co.kr]