Reparation for the Comfort Women: One Court, Two Different Rulings

[경향신문]

On April 21, when the court announced its ruling on the second lawsuit for reparation filed by victims of sexual slavery in the Japanese military against the Japanese government in a South Korean court of law, the elderly Lee Yong-soo announces her position at the Seoul Central District Court in Seocho-dong, Seoul. This day, Civil Agreement Division 15 (chief judge Min Seong-cheol) of the Seoul Central District Court dismissed the claim for compensation against the Japanese government filed by twenty people, victims including the late Gwak Ye-nam and Kim Bok-dong and their families. Lee Joon-heon

Can the South Korean court of law hold the Japanese government accountable for the exercise of state authority against humanity and order reparation for victims of sexual slavery in the Japanese military? The court announced a decision that ran contrary to a ruling just three months ago in a trial on the claim for compensation against the Japanese government filed by the victims, and now two different rulings exist on one problem.

On April 21, Civil Agreement Division 15 (head judge Min Seong-cheol) of the Seoul Central District Court dismissed a lawsuit for reparation (second lawsuit) filed by twenty people, comfort women victims including the elderly Lee Yong-soo, and the late Gwak Ye-nam and Kim Bok-dong, and their families, against the Japanese government. By dismissing the case, the court acknowledged that the lawsuit failed to meet legal requirements and put an end to the issue without any judgment on the case. The court dismissed the case because of a key reason, state immunity, a principle in international law that claims that a country’s court does not have jurisdiction over the actions of another country.

The judges said, “If we deny state immunity unlike customary international law, a clash is inevitable when giving a ruling and when executing the decision,” and further said, “It is not desirable for the court to abstractly add exceptions to state immunity.” At the same time, the court said victims should be redeemed by “domestic and international efforts including diplomatic negotiations between the governments of South Korea and Japan.”

But the same court had announced the opposite decision, siding with other comfort women victims, three months ago. In a case filed by twelve people including the late Bae Chun-hee against the Japanese government (first lawsuit) in January, Civil Agreement Division 34 (head judge Kim Jeong-gon) of the Seoul Central District Court said that “The operation of brothels by the Japanese military was a criminal act against humanity,” and announced, “Despite that it was a sovereign action by the state, state immunity cannot be applied. This is an exception, in which the Republic of Korea’s court of law has jurisdiction over the defendant.” This was the first time that a South Korean court recognized an exception to sovereign immunity. The ruling was finalized for neither the plaintiff nor the defendant appealed the ruling.

In 2013, the victims asked the Seoul Central District Court to mediate between them and the Japanese government for compensation of 100 million won per victim, but the Japanese government refused to respond. The elderly victims then filed the first lawsuit in January 2016. The elderly Lee and others observed the legal process and in December 2016 filed the same lawsuit. The Japanese government refused to respond to both cases claiming sovereign immunity, but the victims argued that Japan’s criminal acts against humanity, such as operating brothels, recruiting and forcing women into sexual slavery, were not subject to sovereign immunity.

Some plaintiffs are likely to appeal the ruling in the second lawsuit, so the case may be concluded when it reaches the Supreme Court. Yet this does not mean that the court decision in the first lawsuit is neutralized, because a civil lawsuit is only valid among the parties involved. But in reality, there is no way to execute the judgment. On March 29, Civil Agreement Division 34 (head judge Kim Yang-ho) of the Seoul Central District Court ruled that seizing the property of the Japanese government in South Korea to execute the ruling in the first trial was a violation of international law.

A court official said, “The second ruling is closer to the opinion of the majority in the legal circle,” and added, “The debate is expected to continue until a final decision by the Supreme Court.” Sohn Yul, a professor at Yonsei University said, “This confirms that we cannot solve a historical problem with a court ruling,” and suggested, “We need to resolve this issue with diplomatic wisdom and agreement.”