Japan considers bringing comfort women case before International Court of Justice

S. Korea-Japan relations rocked by Seoul court ordering compensation for sexual slavery victims

Photos of former comfort women in front of the Statue of Peace in Seoul. (Yonhap News)

Tokyo has begun discussions on bringing a South Korean court’s Jan. 8 ruling ordering compensation to survivors of wartime sexual slavery before the International Court of Justice (ICJ). As the tiring 30-year diplomatic battle over the illegal and inhumane “comfort women” system drags on, the South Korean government may have to enforce the ruling.

Japan’s right-leaning Sankei Shimbun newspaper quoted a Japanese government official on Jan. 9 as saying Tokyo was “considering a suit with the International Court of Justice” in response to the decision by the Seoul Central District Court. According to the official, the current plan involves “declining to appeal in order to avoid complying with the South Korean government’s jurisdiction, while making the injustice of South Korea’s actions clear before the international judiciary.”

In a similar report on Jan. 10, the Asahi Shimbun newspaper said the Japanese government would “continue observing trends in litigation procedures and South Korea’s response as it decides what to do.”

The ICJ is an organization that resolves disputes between countries based on principles of international law. Historically, Japan has both officially and unofficially proposed going to the ICJ to resolve the territorial dispute over the Dokdo islets and the issue of compensation for forced labor survivors. The South Korean Supreme Court ruled in favor of compensation in October 2018.

Both sides need to provide consent for the ICJ to get involved, but Seoul has yet to announce a decision. In a possible nod to this, a senior Japanese government official was quoted by the Asahi Shimbun as saying, “A case [before the ICJ] is a strong option. South Korea’s position stands to suffer if they don’t agree to it.”

In the case of Dokdo, South Korea has declined Japan’s request to go before the ICJ because it already effectively controls the islets. In the case of the Supreme Court decision, it is not certain that the forced mobilization of Koreans under imperial Japan would be recognized as an “illegal and inhumane act” that was not resolved by the 1965 South Korea-Japan Claims Settlement Agreement. The reversal of a ruling by South Korea’s highest court would deal a heavy blow to the Moon Jae-in administration.

But in the case of the comfort women issue, the matter of it being a crime against humanity for which the Japanese government bears legal responsibility was confirmed in a 1996 UN Commission on Human Rights report by Special Rapporteur Radhika Coomaraswamy and a 1998 UN Commission on Human rights sub-commission report by Special Rapporteur Gay McDougall. The ICJ also appears likely to side with the South Korean court’s judgment not to apply the principle of sovereign (state) immunity according to customary international law — which holds that a country’s court does not exercise jurisdiction in suits against foreign governments — to the comfort women issue, which involves war crimes perpetrated against women in a systematic, organized, and widespread manner by the Japanese government.

This may explain why the Sankei Shimbun hinted at more circumspect attitudes within the Japanese government, with some fearing Japan would be disadvantaged “on the other side’s home turf.” In a Jan. 9 press conference, Minister for Foreign Affairs Toshimitsu Motegi said only that there had been a “bizarre situation between our two countries that is utterly unthinkable in terms of international law,” and that Tokyo would “respond resolutely while considering various options.”

If an ICJ judgment is sought on the comfort women issue, it is expected to lead to a heated legal battle over whether the South Korean court was right not to apply the sovereign immunity principle, whether the matter really was resolved by the 1965 Claims Settlement Agreement, and the validity of the comfort women agreement reached by South Korea and Japan on Dec. 28, 2015. Both sides also stand to suffer backlash at home based on the judgment’s outcome.

Seoul’s options if it rejects ICJ proposal

If Seoul rejects Japan’s proposal, it has three alternatives. Japan’s announcement that it does not plan to appeal the decision means that the first court’s judgment will be finalized. This leaves the question of how it will be enforced.

First, the South Korean Ministry of Foreign Affairs (MOFA) may pursue discussions with the Japanese government on whether the ruling can be executed with the roughly 5 billion won (US$4.6 million) remaining from the 10.8 billion won (US$9.8 million) contributed by Japan to the Reconciliation and Healing Foundation, which was established in accordance with the December 2015 agreement.

In a MOFA spokesperson’s commentary, the South Korean government said it “recalls that the comfort women agreement between the South Korean and Japanese governments in December 2015 was an official agreement between the two countries’ governments.” This was Seoul’s first reference to the agreement since January 2018, when Minister of Foreign Affairs Kang Kyung-wha said that “the 2015 agreement cannot be a true resolution to the issues of Japanese military comfort women victims when it does not properly reflect the views of the women who were victimized.”

But the chances of Japan agreeing to the idea of using the remaining funds from the foundation’s dissolution to enforce the ruling are basically zero, as it would mean recognizing the ruling in the first place. If the South Korean government attempts to use the money to enforce the ruling despite Japan’s objections, it would be setting itself up for a diplomatic clash.

A second alternative involves compulsory execution of the ruling. With Japan insisting that it cannot comply, enforcement would entail locating, seizing, and liquidating Japanese assets in South Korea. In the wake of the Supreme Court ruling on forced labor in October 2018, the plaintiffs went ahead with seizing the assets of Japanese companies in South Korea, a source of major friction in 2019. The latest case was filed against the Japanese government, which could end up severing diplomatic ties.

Also, because Article 22 of the Vienna Convention on Diplomatic Relations states that diplomatic assets such as the Japanese Embassy in Seoul are immune from “execution,” other assets would need to be found. In rational terms, this option isn’t one that warrants consideration.

A third alternative is simply a long-term standoff. In this scenario, the court decision is left as a long-term issue that has been finalized but not enforced. In this case, the judgment on Jan. 8 would remain “symbolic” as the first judgment by a South Korean court to recognize Japan’s legal responsibility for the comfort women issue.

By Gil Yun-hyung, staff reporter

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