The Unexpected Ruling of the Seoul Court

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The issue of the lawsuits that South Korea is bringing against Japan has a long history.  When Japan and the ROK established diplomatic relations in 1965, Tokyo paid substantial compensation and provided interest-free loans to Seoul, which were not a determining but important part of the “miracle at Hangangan”. Although these sums were sent to the Korean government rather than to specific victims, the Japanese side believes that all issues related to compensation for the “cursed past” have already been resolved.

Tokyo also believes that the issue of comfort women (wianbu) was finally resolved in December 2015, when, in an agreement signed by the foreign ministers of the two countries, the Japanese side formally apologized and issued a 1 billion yen ($8.6 million) support for the victims. After this apology and compensation, South Korea pledged to close the matter.

However, pro-government NGOs, primarily the Korean Council of Justice and Remembrance, for whom this decision meant the end of government funding, could not just leave it alone and went after the elderly, informing them deliberately false about the nature of the “dishonorable deal”. It was then declared that the agreement had been signed without taking into account the opinion of the people and that the Republic of Korea was entitled to disregard it, and when Moon Jae-in became president, it became state policy.

In January 2018, Moon publicly apologized on behalf of the government, saying the 2015 agreement did not fully reflect the will of sex slavery victims, and in 2019, the Constitutional Court ruled that the agreement was politically but not legally binding. But there has been no termination of the agreement, which would have involved the return of the money handed over to Seoul. But the aforementioned council and other organizations kept telling us that the Japanese apology was insincere anyway, and that as for compensation, on the one hand, the Japanese should pay and repent, but on the other hand, the suffering of our elderly would not pay off in any way.

On the legal side, this has degenerated into the thesis that the 1965 treaty and other agreements between Seoul and Tokyo do not abrogate the victims’ right to demand compensation from Japan for their suffering. Thus began the lawsuit epic that ended a 2019 trade war caused by the ROK Supreme Court’s 2018 ordering two Japanese companies to pay compensation to Korean wartime forced labor survivors.

In late 2020-early 2021, however, the reputation of such NGOs was seriously tarnished when it became clear that elderly were engaged in outright business and most of the funds allocated simply did not reach them. After that, Lee Young-soo, one of the most active grandmas who accused the Council leadership of financial fraud, took matters into her own hands. Together with Shin Hee-seok, a lawyer from the Yonsei University Center for Legal Studies, she formed another “committee to resolve the issue of sexual slavery in the Japanese army,” after which Shin’s lawyer said he intended to prove that the Japanese army’s sex slavery system during World War II was illegal under international law back then and that the 1965 Seoul-Tokyo agreement denied Japan the right to personal lawsuits.

Tokyo insists that all South Korean court decisions are null and void on the basis of the principle of sovereign immunity. This doctrine protects the state from civil suits in foreign courts and all lawsuits filed in Japanese courts have been decided in favor of defendants — according to Amnesty International, survivors from various countries, including Taiwan and the Philippines, have filed about 10 lawsuits against Tokyo in the past three decades, but none of them have won.

The South Korean side usually countered this argument by arguing that such a rule should not apply to crimes against humanity and war crimes, and Seoul considers the actions of the Japanese authorities with regard to the wianbu to be such.

On Jan. 8, 2021, the Seoul Central District Court ordered Japan to pay the 12 former wianbu 100 million won ($91,300) each.  The lawsuit was filed back in August 2013, and the former comfort women claimed that they were either deceived or forced into sexual slavery, seeking compensation for their suffering. Nevertheless, at the insistence of the plaintiffs, the case was not formally brought to court until January 2016, but even there it took a long time to process, as Japan refused to accept court notices and the first hearing in the case was held by the court in April 2020.

As noted in the court’s decision, “the collected materials and testimony show that the victims suffered severe mental and physical pain because of the unlawful actions of the defendants, without having previously received proper compensation.”  Unlike forced labor mobilization cases in which private companies were the defendants, in this case the Japanese government was the defendant. Thus the court confirmed the thesis that as far as crimes against humanity were concerned, sovereign immunity was irrelevant.

Of the 12 plaintiffs, five lived to see the decision, but the court’s decision of January 8, 2021 was described as the first legal victory over the Japanese government, and “a warning to Japan, which refused to make a sincere apology and reflect on its atrocities committed before and during World War II”. It was noted that this and past decisions of the ROK courts “showed the consistent stance of the South Korean judiciary on this issue in recent years“. However, even conservative media wrote that “Seoul and Tokyo should seek to contain tensions … while continuing to seek fundamental measures to put the sad story behind them.” But “Japan must redeem itself more sincerely“.

In response, the South Korean ambassador was summoned to the Japanese Foreign Ministry, where he was told that the court ruling was “absolutely unacceptable,” and newspapers began to write that relations between the two countries “seem to have reached a new low”. At the same time, individual experts noted that each such lawsuit would increase the likelihood of future ones and further complicate relations between the two countries — just when “US President-elect Joe Biden was intent on tightening America’s network of alliances to strengthen his global leadership.”

The very next day, Foreign Minister Kang Kyung-wha called on Japan to refrain from “overreacting” to the decision of the Korean court in a telephone conversation with her counterpart Toshimitsu Motegi. In response, she received a demand to “immediately take appropriate measures to remedy the violation of international law”.

On January 15, Kim Jong Han, director of the Asia-Pacific Department of the ROK Foreign Ministry, and his Japanese counterpart Takehiro Funakoshi had a video conference, but agreed only to continue consultations “sharing an understanding of the importance of continuing the dialogue.”

Nevertheless, at the January 18 New Year’s press conference of the president of the ROK, there were the first signs that Seoul was backing down. Moon Jae-in said he was “frankly baffled” by the court’s decision and called it “a little awkward” and called for a diplomatic solution that the plaintiffs could agree to. In addition, he noted that the 2015 agreement was a “formal agreement between the two governments” and that it would be undesirable if the assets of Japanese companies in Korea were liquidated to fund compensation.

The conservative media pointed out that while such remarks could be called forward-looking, they were aimed at taking advantage of the summer Olympics in Tokyo to revive the stalled talks. At that time, it was still expected that North Korea might field its own players for the Games, and thus there could be contact between the Korean sides that would lead to a new round of “Olympic warming”.

On January 22, Motegi said that Japan would not appeal the Seoul court ruling because the case should in principle have been dismissed on the basis of the concept of sovereign immunity, and a little earlier, a group of legislators from the ruling Liberal Democratic Party of Japan demanded that the government take more drastic measures, including referring the case to the international court. Motegi called the court’s decision “gravely regrettable and totally unacceptable,” in response to which the South Korean Foreign Ministry urged Japan to “make a sincere effort to heal the wounds of the victims of sexual slavery“.

On February 16, the elderly Lee Young-soo demanded that Seoul refer the wianbu case to the International Court of Justice in The Hague to “hold Japan accountable (read, force it to comply with the Seoul court decision) according to international law“. Reading her pre-written request to the president, the 92-year-old woman was moved to tears. Shin Hee-seok supported her demands: “What the elderly want from Japan is not financial reparations, but an apology, recognition of war crimes, and (proper) history education.” Of course, because all the previous apologies were not, in their opinion, sincere and humiliating enough for Tokyo.

On the same day, Foreign Ministry spokesperson Choi Yong Sam noted that such a possibility would be considered.  However, the International Court of Justice does not recognize compulsory jurisdiction, so a lawsuit can be filed only if Seoul and Tokyo mutually agree.

On February 24, 2021, during a virtual meeting of the UN Human Rights Council, South Korea’s second deputy foreign minister, Choi Jung Moon, said that the tragedy of comfort women must be seen as a universal human rights issue, and such serious violations must be prevented from happening again.

The Japanese delegation categorically rejected these allegations, again citing the 2015 agreement on the issue. In response, the South Korean delegation reiterated that sexual slavery is inherently a violation of universal human rights, and official Seoul cannot prevent the victims themselves from expressing their concerns.

On March 1, in another speech, Moon Jae-in again extended an olive branch to Tokyo, reiterating his commitment to dialogue with Japan “at all times” and stressing that the two countries should not be bound by the past.

On March 3, 2021, Lee Young-soo met with Foreign Minister Jeong Eui-young, stating that Yoshihide Suga should be persuaded to take the matter to an international court. The minister “thanked Lee Young-soo for her contribution to raising public awareness at home and abroad about the problem of sexual slavery” and promised to do “everything possible and work to find a solution,” but explained that an appeal to an international court is a complex issue that requires careful consideration.

It would seem that it all is pretty understandable. But on April 21, 2021, the same Seoul Central District Court (albeit a different judge) was to rule on a similar claim. It was filed by 20 people, including Lee Young-soo, other former comfort women, and family members of some of the dead victims.

And then the thunderstorm struck: the court makes a decision, the exact opposite of the previous trend. The suit is dismissed, and the court cites the principle of sovereign immunity and the December 28, 2015 agreement, noting that while it does not deny the victims’ right to seek compensation and does not consider the issue resolved, the problem of victims of sexual slavery in the Japanese army during World War II should not be resolved through the courts, but through the foreign policy efforts of the ROK and Japan.

The court noted that the imposition of compensation may lead to violations of international law, including Article 27 of the Vienna Convention, and cited several examples of cases that have been dismissed due to the rules of sovereign immunity, but the author would like to draw attention to a point that the South Korean media have tried to silence.  The verdict noted that 99 of the 240 officially confirmed victims, including nine of the plaintiffs, received aid from the fund created by the 2015 agreement, with the said group of plaintiffs receiving an aggregate of 660 million won. In this regard, the court pointed out that since some of the plaintiffs had safely received money from the Japanese government, one cannot accept the argument that the 2015 agreement was “contrary to the will of the people” in general and the plaintiffs in particular. Otherwise they wouldn’t have taken “Japanese money”.

In response, the Korean Justice and Memorial Council said that the April decision does not overturn the January decision and demanded an appeal.  The NGO (the one most tainted in the granny business) vowed to “fight until the day when the Japanese government acknowledges its responsibility for crimes against humanity and promises and implements legal compensation.”

Judge Min Seung-chul’s ruling has been called “a great stain on human rights and Korean history”, but the claim that “the whole nation was shocked and disappointed” was rather ritualistic, as there has been no action by human rights NGOs or individual outraged citizens yet.

The plaintiffs also disagreed with the court’s current ruling because they believe that state sovereignty should not extend to acts involving serious human rights violations. In their view, recognition of state sovereignty in such matters runs counter to the Constitution, which guarantees citizens the right to judicial protection. Lee Young-soo, on the other hand, once again called for the matter to be referred to an international court.

The Foreign Ministry of the ROK refrained from comment, stating that it is investigating the details of the court ruling, but the government will do its best to honor the victims of sexual slavery in any case. “As we are sorting out the details of today’s ruling, we intend to refrain from making any specific references.”

Conservative media also spoke out against the decision. “It’s hard to understand why the court changed its stance so abruptly.”  Granted, the judge cited examples of court cases that were dismissed under sovereign immunity, including the International Court of Justice’s dismissal of claims for Nazi crimes, but “it is absurd to compare cases against Germany to the wianbu case.” “Times have changed greatly, and there is a growing need to reinforce the fight against heinous war crimes and crimes against humanity, such as the sexual enslavement of South Korean women by Japanese troops.”

What would all this mean? — The refusal to approve a claim is quite an important landmark, because until a certain time the South Korean judicial system had consistently allowed such claims both by former victims of sexual slavery and by persons who had been mobilized for forced labor in the colonial period and also demanded enormous compensation. All of this has been a constant presence in the mainstream media, as state anti-Japanism is an important element of the ideological package of contemporary South Korea.

Nevertheless, the judicial machine has suddenly failed, and this can be explained by at least two reasons. The first is that President Moon Jae-in is gradually becoming a “lame duck,” from which even his new high-profile anti-Japanese actions will not get him out, because his attempt to clamp down on Japan with economic measures as part of the trade war has rather failed, and Korea has suffered more losses than Japan from the boycott of Japanese goods. In addition, the “lame duck’s” instructions are no longer exactly binding, and service drafts are well aware of that.

The second explanation relates to the fact that the trade war and other anti-Japanese rhetoric is being rolled back not against Moon Jae-in’s wishes, but on his instructions, which stem from external causes. If South Korea could front on limited terms under Trump as a “non-system president,” it is obliged to heed Biden’s statements about restoring regional alliances. Meanwhile, the new US administration immediately engaged in another attempt to form a working Washington-Tokyo-Seoul triangle, which so far has been shaped more like the letter L, due to South Korea’s obstructionist position. And while Japan’s plans to begin dumping radioactive water into the Pacific Ocean from the Fukushima Daiichi nuclear power plant have raised some reasonable concerns, which Tokyo is inclined to respond to constructively, the lawsuits filed under Moon Jae-in have been bound up exclusively with a populist domestic political agenda.

Not coincidentally, during a visit to Korea, US Secretary of State A. Blinken told KBS that the sexual exploitation of women during World War II was a serious violation of human rights, but the US calls on South Korea and Japan to resolve their historical problems in a spirit of mutual reconciliation.

Within this context, the author believes that in the last year of Moon Jae-in’s rule, the anti-Japanese agenda is unlikely to be phased out completely, but it could largely diminish in scope, being reduced to reactive actions on faulty textbooks or another attempt to call Dokdo Takeshima.

Konstantin Asmolov, PhD in History, leading research fellow at the Center for Korean Studies of the Institute of the Far East at the Russian Academy of Sciences, exclusively for the online magazine “New Eastern Outlook“.

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