‘Yet, it moves…’: The Dynamic Evolution of State immunity in the ‘Comfort Women’ case

Introduction                           

On 8 January 2021, the Central District Court of Seoul, Republic of Korea (South Korea), ordered the Japanese government to compensate 12 South Korean victims in respect of sexual slavery perpetrated by members of the Imperial Japanese Army during the Japanese occupation of parts of Asia until the end of WWII (case n. 2016 Ga-Hap 505092). The judgment has not been appealed by the parties and is now final. The case, that has already gathered the attention of the public opinion worldwide (here, here, here and here), is likely to freeze already chilly diplomatic relations between the two countries. Japan did not participate in the proceedings and protested the decision for violation of its sovereign immunity.

The judgment brings to the fore again the unsolved (or unsatisfactorily-solved) issue of the appropriate balance between the individual right to an effective remedy and State immunity, when the violation of peremptory norms is at stake. Following a purported dynamic evolution of international law, the Court relied upon the South Korean Constitution to defend the victims’ right of access to justice, taking as a core (and sole) precedent the Italian case law discussed below. This constitutionally-oriented interpretation of State immunity led the Court in Seoul to conclude that:

“[t]he significance of the theory of state immunity shall be found in its respect for sovereign states and not obeying the jurisdiction of other states. It must not have been formed to allow states that violated peremptory norms … and inflicted severe damages upon individuals of other states to evade reparations and compensation behind such theory” (section 3, let. C, n. 3.7 of the unofficial English translation of the judgment provided by the NGO “Korean Council for Justice and Remembrance for the Issues of Military Sexual Slavery by Japan”, on file with the author).

The case background

During the military occupation of East-Asia by Japan (1930-1945), young women were systematically abducted or recruited with false promises of an employment to be later detained as sexual slaves in structures under the control of the Imperial Japanese Army. Victims of these crimes are also known by the controversial epithet of “comfort women” (among the vast literature cf. here and here). While numbers are still being debated, estimates talk of over 200 000 victims, the majority of whom are of Korean origin (UN Report on Systematic Rape, Sexual Slavery and Slavery-Like Practices during Armed Conflict, 1998; see also UN Report on Military Sexual Slavery in Wartime, 1996). For a long time, the Japanese government has denied any involvement in these crimes, a narrative supported by some historians who assert that “comfort women” joined the Japanese army voluntarily to work as prostitutes and were paid for the job (cf. a recent example of denialism).

The issue of Japanese military sexual slavery belatedly garnered the attention of the international community in 1991, when three Korean survivors sued the Japanese government before the District Court of Tokyo, claiming compensation and official apologies. Several other lawsuits were filed before Japan’s domestic courts. However, the cases were dismissed on the basis that individual claims were waived by post-war agreements between Japan and South Korea (Supreme Court of Tokyo case n. LXDB 25471142, 2 March 2010, for a commentary here). Individual claims lodged against Japan in 2000 before US courts met a similar fate, being barred by the 1951 Peace Treaty between the US and Japan (see Mayor, ILDC 1987 US 2003).

Failing redress in Japan (and in the US), Korean victims initiated a series of proceedings in South Korea. In August 2011, an unprecedented ruling of the Korean Constitutional Court declared that the South Korean government’s failure to take diplomatic action to seek compensation for Korean victims of Japanese military sexual slavery was unconstitutional. The Court affirmed the South Korean Constitution provides for a State’s duty to act in diplomatic protection of its citizens (see Shin, ILDC 1880 KR 2011). Under pressure of this judgment, the South Korean government entered into diplomatic negotiations with Japan that eventually led to the agreement of 28 December 2015, settling the vexed issue of reparations for Korean victims of military sexual slavery (hereinafter ‘2015 Agreement’). Besides Japan’s official apologies, the two governments agreed to establish a foundation to administrate a victims’ trust fund, financed by Japan. The agreement provides that “the issue is resolved finally and irreversibly with this announcement” (paras 1.3 and 2.1. of the 2015 Agreement, on the complex and partial execution of the accord see here).

The judgment of the Central District Court of Seoul

Against this backdrop, in 2016 twelve Korean victims of military sexual slavery sued Japan before the Seoul Central District Court claiming damages. On 8 January 2021, the Court, composed of three judges, ordered the respondent State to pay 100 000 000 KRW (about US$ 91.000) to the claimants and their next of kin. Japan never participated in the proceedings and the judgment is now final.

The Court’s reasoning unfolds along four main lines: a) the analysis of the factual background and of the victims’ testimonies (sections 1-2); b) the assessment of the Court’s jurisdiction and the applicability of the rule on State immunity (sections 3-4); c) the merits, dealing with the wrongfulness of the impugned conducts, their attribution to Japan, the damages suffered by the plaintiffs, and the amount of compensation – called “solatium” (section 5, lett. A-C); d) the applicability of statute of limitations, inquiring whether post-war agreements signed between South Korea and Japan (including the 2015 Agreement) may have waived individual claims for compensation (section 5, let. D).

This preliminary appraisal of the South Korean judgment focuses on the legal reasoning on jurisdictional immunity with a view to underscoring the use made by the Court of legal precedents and to highlighting the innovative elements of the case.

State immunity, ius cogens and the right to an effective remedy

The South Korean Court affirmed their jurisdiction over Japan determining that “the doctrine of state immunity is not permanent nor static” (section 3, let. C, n. 3.3). The doctrine has evolved to include a number of exceptions as demonstrated, in the Court’s view, by several elements of national and international practice, namely the European Convention on State Immunity of 1972, the UN Convention on Jurisdictional Immunities of States and their Property of 2004 and numerous pieces of domestic legislation (section 3 let. C, n. 1).

Among relevant exceptions – the Court continues – ius cogens violations deserve particular attention. The rationale of this exception is found by the Court in Art. 53 of the Vienna Convention on the Law of Treaties and in the Articles on Responsibility of States for Internationally Wrongful Acts, duly examined in the judgment (section 3 let. C, n. 3.5). Also, the ius cogens nature of the crimes is analysed under the prism of intertemporal law, underlying that Japan was bound by international conventions prohibiting sexual slavery already at the time when the facts occurred (i.e. the Convention for the Suppression of the White Slave Traffic of 1910; the Convention for the Suppression of the Traffic in Women and Children of 1921; the Slavery Convention of 1926 and the ILO Convention n. 29).

Then the judges considered the ius cogens exception to State immunity from the viewpoint of Korean national law. In the Court’s words:

“if customary law is applied to exempt the Defendant from jurisdiction even in cases where the Defendant has committed grave crimes against humanity, it would be impossible to sanction a state for violating international conventions that prevent it from committing grave crimes against humanity against citizens of another state, thereby depriving victims of their right of access to courts guaranteed by the Constitution and not providing a remedy for their rights. Such results are unreasonable and unjust as they are not in accordance with the overall legal order that positions the Constitution as the highest norm. Thus, customary international law that applies state immunity is not effective in such cases” (section 3, let. C, n. 3. 6).

For the Court, this interpretation is mandated by respect for the South Korean constitutional legal order, i.e. Art. 27 (1) of the South Korean Constitution, enshrining the right of access to courts, and it is also supported by Art. 8 of the Universal Declaration of Human Rights (section 3, let. C, n. 3.1).

The Court chose a very selective approach in the analysis of international practice, as the judgment builds exclusively on the Italian case law of the Corte di Cassazione in the Ferrini case and on the much-talked-about Sentenza n. 238/2014 of the Italian Constitutional Court (section 3, let. C, n. 2.c). As is well known, the Constitutional Court established that the Italian law implementing the ICJ judgment in Jurisdictional Immunities (Germany v. Italy) was unconstitutional (here). The Court held that that granting immunity to foreign States that violated peremptory norms of international law, absent an effective remedy for the victims, was an indefensible sacrifice of fundamental rights and especially of the right of access to justice as enshrined in Art. 24 of the Italian Constitution. On this basis, it held that the customary rule on State immunity, as interpreted by the ICJ, could not be incorporated in the Italian legal system (see contributions on this blog from Peters, Tams and Schilling, see also the dedicated forthcoming book). The landmark ICJ judgment in Jurisdictional Immunities, that defended the absolute and procedural nature of State immunity for iure imperii acts – ius cogens violations notwithstanding (cf. here) – was not ignored by the Korean judges. However, it cannot go unnoticed that the ICJ ruling was treated by the District Court merely as a piece of judicial practice that preceded the Italian ruling of the Constitutional Court:

“[A]fter the ICJ judgment, the Italian Constitutional Court decided on October 22, 2014, that customary international law of state immunity violates the basic value of Italian constitutional order which is based on the recognition and guarantees of the dignity and worth of the human person and the right of access to courts and thus cannot be accommodated within the Italian legal order” (section 3, let. C, n. 2.c).

The South Korean Court’s somewhat anomalous selection of precedents on State immunity raises some criticisms. The Court could have sought further support from other national precedents, as for example the Canadian and US case law on “terrorism exceptions” to State immunity (cf. Pavoni here and here). Moreover, the judges should have debated, rather than ignored, the numerous national and international judicial precedents preserving the State immunity rule (ex pluribus Jones v UK). This can be partly explained by the Court’s determination to navigate the decision in the safe waters of the national constitutional framework. However, in so doing, the judges could have deprived the judgement of its position as an authority in the international legal context.

Eventually, as to the “last resort argument”, according to which State immunity cannot be granted absent an effective remedy to victims, the Court introduced another innovative element. It is maintained that the 2015 Agreement “failed to include reparations for individuals who have suffered damages” (section 3, let. C, n. 3.6). As a consequence:

“the Plaintiffs, who are merely individuals who do not have negotiation power or political power, do not have measures to receive reparations for specific damages other than this lawsuit” (ibid.).

In sum, the Korean judges affirmed that access to courts and individual compensation for specific damages are a condition sine qua non of the individual right to an effective remedy. The Court determined that States cannot bargain this right away, not even through alternative remedial mechanisms such as the victims’ trust fund established under the 2015 Agreement. Also, the Court came to the conclusion that post-war agreements between Japan and South Korea cannot bar individual lawsuits. On the 2015 Agreement, the judges observed that:

“since the state cannot dispose of individual rights without separate delegation or provisions of laws and regulation, it cannot be concluded that the Plaintiffs’ right to claim damages has been finally and irreversibly resolved by the Agreement” (ibid.).

It seems likely that the Court’s opinion on this point would contribute to the ongoing debate on the very meaning of the individual right to an effective remedy, access to justice and to the legal implications of State waivers of individual claims (cf. here, here and here). 

The emergence of constitutional exceptions to State immunity

The path traced by the Italian Constitutional Court and followed by the Court in Seoul suggests the emergence of constitutional exceptions to State immunity, where national Constitutions are utilized as a legal barricade to protect the individual right to a remedy in cases of delicta imperii. This tendency can be read in light of the continuous “duel for supremacy” where domestic courts attempt to preserve fundamental values – typically enshrined in national Constitutions – from international law limitations (cf. here). Moreover, in the State immunity domain, this trend can be understood as a legal and political reaction of national courts to the excessive conservatism showed by the ICJ in the Jurisdictional Immunities case (on the role of domestic courts in this context see Conforti).

The judgment at hand will certainly spark a lively debate among international scholars and practitioners, where two lines of comments may emerge (for a first insight see Franchini). The Korean judgment may be considered as a disgraceful push towards unilateralism, at the expense of the universalism embodied in the ICJ (see Peters on Sentenza 238/2014). By contrast, the case may be welcomed as a promising precedent that, while not accurately reflecting the current state of customary law, could contribute to progressively designing a privilege-free and human-rights oriented rule on State immunity. In this light, the apparent unilateral drive of a national court would be beneficial to shaping a fairer international community.

The “messy affair” of State immunity is characterised by continuous pushes forward and backwards. Most probably, we should conclude that the position on jurisdictional immunity of States is not (yet) the one depicted by the Korean judges. However, as Galileo might have murmured – ‘yet it moves’. The main challenge is to understand in which direction this doctrine is heading, and certainly this judgment demonstrates its evolutionary capacity.