This paper is a revised version of a report given at a public workshop held at the Osaka Institute of Technology on July 3, 2021, to commemorate the publication of Seiya Morita’s new book, Marxism, Feminism, and Sex Work.
3 July, 2021
In this piece, I approach the problem of the “comfort women” from the perspective of the historical peculiarity of the sovereignty principle of the Japanese Constitution. In so doing, I focus on the January 8, 2021 ruling of the Seoul Central District Court, which endorsed the claims of former “comfort women” and ordered the Japanese government pay compensation (However, since then, the same Seoul Central District Court has dismissed other similar claims of the former “comfort women” for a political reason, i.e., the hope of the Moon government not to further deteriorate relations with Japan. (Onchi, 2021)). This was an epoch-making decision that opened up a new dimension of international law. (Seo, 2021)
The decision endorsed the claims of the former “comfort women” in respect of international law and the Korean Constitution, but there was no mention of the peculiarities of the postwar Japanese state and the Japanese Constitution. It is necessary to additionally take them into account because, accordingly, the Seoul Central District Court decision is justified even more clearly.
Events leading to the Seoul Central District Court decision
Before turning to the 8 January decision, I will briefly review events leading up to it. Attorney Seita Yamamoto wrote the following account in an article in the magazine Shukan Kinyobi.
On January 8 this year (2021), the Seoul Central District Court of South Korea approved the lawsuit filed by the former “comfort women” plaintiffs and ordered the Japanese government pay 100 million won (about 9.5 million yen) in compensation per person. The Japanese government did not file an appeal by the deadline, and the ruling became final. In 2013, the plaintiffs had filed a mediation request for talks with the Japanese government. The court repeatedly sent letters to Japan inquiring about whether it would accept the mediation, but when the Ministry of Foreign Affairs returned the letters without accepting them, the court ruled that the mediation was unsuccessful. As a result, the mediation was automatically transferred to litigation. During the delay in the proceedings, seven of the twelve plaintiffs died. The court proceeded with the proceedings by serving the documents by public notice (publishing them in the court or on the Internet for a certain period of time and deeming them to have been received) and pronounced the judgment. Civil lawsuits are judged by the arguments of the parties[…]. However, the issue of jurisdiction, which is whether the court has jurisdiction over the case, will be determined by the court in light of the law regardless of the claims of the parties. Since the Japanese government ignored the legal procedure, the issue of jurisdiction, i.e. the validity of the claim of “sovereign immunity,” became almost the only point of contention. (Yamamoto, 2021, p. 16)
The former “comfort women” filed for mediation, seeking to discuss the issue with the Japanese government, but the Japanese government ignored them, so they had no choice but to go to court. As explained by Yamamoto, seven of the twelve plaintiffs died during the period. We can imagine their frustration leaving this world. Since the Japanese government completely boycotted the trial, the familiar arguments of the Japanese side (for example, ‘the problem has been completely settled under the so-called Japan-Korea Agreement’, and so on) were not in dispute at all and the only issue was the jurisdiction of the trial.
The issue that arose was the question about so-called “sovereign immunity”. In Korean parlance, this concept is formulated as “state immunity”. The term “sovereign immunity” or “state immunity” refers to the principle under international customary law that a sovereign state is not subject to the jurisdiction of another state. Conversely, an individual from another country cannot bring a case against a foreign state or government in his or her own country. This is justified by the principle of equality between sovereign nations. When the Seoul court ruling came out, Prime Minister Yoshihide Suga’s statement (JiJi Tsushin, 2021), the Foreign Minister’s official statement (Foreign Minister MOTEGI Toshimitsu, 2021), and almost all major media and local newspapers regarded the ruling of the Seoul District Court of South Korea as a violation of international law, and liberal newspapers hypocritically expressed concern about the deterioration of Japan-Korea relations (See, for example, Ueno, M. and Nakamura, A., 2021). In any case, the biggest focus of the trial was how to break down the sovereign immunity argument, which was the biggest and almost only point of contention in the trial, and how to make it possible to provide relief for the serious damage the former “comfort women” had suffered.
Outline of the Seoul Central District Court Decision
The Seoul Central District Court carefully and broadly examined whether the principle of “sovereign immunity” (or “state immunity”) under international customary law can be applied to the former “comfort women” issue. The full text of the judgment of the Seoul Central District Court was published in a series of articles in Shukan Kinyobi. It is very long and difficult, so I will offer an explanation based on Yamamoto’s short abstract, and on the basis of the judgment text itself.
First of all, Yamamoto says, ‘The judgment first overviews the trend of international law concerning sovereign immunity, and then examines the possibility that this case can be regarded as an exception to sovereign immunity, based on the principle of limited immunity as a private law act, and rejects it.’ The reason why Yamamoto confirms this at the beginning is that if the act of the Japanese state was a private law act, like a business transaction by the state, the issue of sovereign immunity can be easily set aside because many countries, including Japan, have already recognized exceptions to sovereign immunity for such private law acts. However, this had not been the case for the “comfort women” issue. The planning and implementation of the “comfort women” system, the recruitment and transportation of Korean women, the operation of the comfort stations, and the search for escaped women, bringing them back and torturing or shooting them to death were all done with the direct or indirect involvement of the Japanese state and the Japanese military of the time. These were precisely sovereign acts of Japan. In the case of such examples of sovereign acts where the claim of sovereign immunity is most likely to be established, whether or not an exception to sovereign immunity can be established was very difficult.
Furthermore, Yamamoto continues, ‘the decision reviewed the Greek and Italian cases, the ICJ decision, and the Italian Constitutional Court decision.’ The ‘Greek and Italian case’ refers to a past case (the Fellini case) in which an Italian court in 2004 recognized a claim for compensation for forced labor by Nazi Germany as an exception to sovereign immunity. The ‘ICJ decision’ refers to the decision of the ICJ, or International Court of Justice, in which Germany appealed the Italian decision to the ICJ in 2008, and the ICJ recognized Germany’s claim of sovereign immunity in 2012. Finally, the ‘Italian Constitutional Court decision’ refers to the fact that when the Italian Parliament made a domestic law based on the ICJ decision, the Italian Constitutional Court ruled in 2014 that the law was unconstitutional as it violated the right of access to the court.
Based on the above overview, the judgment of the Seoul Central District Court now focused on the main issues concerning sovereign immunity. Yamamoto summarizes the main points of the decision by using the numbers (1) through (7).
(1) ‘The importance of the right of access to the court.’: The former “comfort women” had tried trials in Japan and the United States, but they had been turned away at the door. The only remaining means of judicial redress for the victims was to appeal to the Korean courts. Therefore dismissing that right with the formal logic of sovereign immunity means that the victims would be deprived of their right to a trial. If they were deprived of that right, all other rights would be null and void.
(2) ‘Procedural law must not be allowed to overshadow substantive law rights.’: ‘Procedural law’ refers to the sovereign immunity regarding jurisdiction, and ‘substantive law rights’ refers to the human rights violation suffered by the former Japanese military “comfort women.”
(3) ‘Sovereign immunity has changed as international law has moved towards the protection of individual rights.’: In the 19th century, when individual human rights were neglected, the principle of absolute immunity was adopted. However, after the Second World War, the principle of granting exceptions to sovereign immunity for various private legal acts (such as commercial transactions) conducted by the state gradually spread internationally and became customary law, which led to the shift to the principle of limited immunity. The customary law principle of sovereign immunity is not immutable and absolute but has undergone an inevitable transformation, as the international norm of human rights protection became stronger in the late 20th and 21st centuries.
(4) ‘The Korean Peninsula at that time was not a battlefield.’: This historical fact may seem unconnected to the case, but it became a point of emphasis in the court’s decision. This is because the ICJ’s above-mentioned decision to grant Germany “sovereign immunity” was based on the logic that war crimes committed by Nazi Germany were incidental to the act of warfare and could not be established as an exception to sovereign immunity. After all, various human rights violations inevitably occur in war. Therefore, on this basis, the Seoul District Court decision emphasized that although the Korean Peninsula at that time was a colony of Japan, it was not a direct battlefield like China or Southeast Asia, and so the recruitment, coercion, and management of “comfort women” were activities not incidental to combat activities.
(5) ‘Existence of peremptory norms of international law (jus cogens).’: The term “peremptory norms of international law (jus cogens)” may be unfamiliar, but it is an idea based on the Vienna Convention of 1969 and ended up a considerably important point in the logic of the District Court’s decision. First of all, there are two types of international laws: absolute norms (international peremptory norms) and subordinate norms (procedural customary laws), and subordinate norms must not deviate from the absolute norms. Absolute norms here refer to important international norms established by various international human rights treaties, such as the prohibition of aggression, prohibition of slavery and the slave trade, prohibition of racial discrimination, prohibition of genocide, prohibition of torture, observance of basic principles of international humanitarian law in the event of armed conflict. The decision’s logic is that procedural and formal norms such as sovereign immunity are subordinate norms, and, therefore, they cannot deny the application of these absolute norms. Of course, “prohibition of human trafficking,” which is directly related to the “comfort women” issue, is included in these absolute norms, although it is not mentioned in the judgment.
(6) ‘Unjust consequences of applying sovereign immunity.’: As mentioned above, a mechanical interpretation of the formal logic of “sovereign immunity” would lead to the highly unreasonable and unjust result that even if a state breaks various important international treaties to cause massive human rights violations to individuals in other countries, it would not be tried by any court. This is contrary to a rational interpretation of laws, including international law. There is more than one way to interpret laws, and the same is true for customary international law. Therefore, in order to avoid such unreasonable and unjust results, various methods of interpretation of law should be mobilized and utilized, and the interpretive logic should be constructed in such a way that a reasonable conclusion is drawn as a whole, said the decision of the Seoul court. And it does not have to be based on some arbitrary method but should mobilize multiple methods of interpretation that can lead to a reasonable conclusion. This is an important interpretive attitude that can be applied to all other human rights issues.
(7) ‘Sovereign immunity is not a cover for states that violate the peremptory norms of international law and cause serious harms to individuals in other countries.’: The international norm of sovereign immunity is a principle derived from the equality of sovereign states. It is not a convenient “cover” for a nation that violates international peremptory norms and inflicts damage on individuals of other countries.
Yamamoto concludes that the Court ‘judged that sovereign immunity cannot be applied to this case, which was an anti-humanitarian criminal act premeditated and systematically committed by the Japanese state.’ (Yamamoto, 2021, p. 17)
As can be seen, the Seoul District Court decision was not based on anti-Japanese sentiment or nationalism in Korea, but on the careful and multifaceted consideration of the issue and adopted a jurisprudentially rational attitude toward its interpretation. At the same time, it shows that the Court tried to stick to its judicial original mission of providing relief and justice to the actual victims.
To add to Yamamoto’s summary, we should not overlook the fact that the Seoul District Court did not draw this conclusion based only on international treaties, but also insisted that the above interpretation was in line with the provisions of the Korean Constitution as well as precedents in Korea. This is especially true where the Court decision points out that the Korean Constitution guarantees the right to a trial as an extremely important right (Article 27). In addition, the ruling also brings up Korean precedents that customary law is only effective as long as it does not violate the highest norm of the Constitution.
Historical peculiarity of the sovereignty principle of the Japanese Constitution
As we have seen above, the Seoul Central District Court’s decision was based mainly on international treaties and precedents, but also on the Korean Constitution and Korean judicial precedents, stating that the customary international law of sovereign immunity does not apply to the “comfort women” issue.
A few articles that appraised this decision also based their conclusions mainly on the international human rights norms. However, my distinct argument here is that to this logic we need to add historical peculiarities of the sovereignty principle of both the postwar Japanese state and the Japanese Constitution.
First of all, Japan repeatedly waged wars of aggression against the Korean peninsula, China, and other Asian countries for 15 years (or longer, depending on from when you count), and finally surrendered unconditionally to the Allied Powers by accepting the Potsdam Declaration. It is obvious that the condition for Japan’s return to the international community as a sovereign nation after the war was to sincerely regret this war of aggression and build a new nation that would never repeat its mistakes. The punishment and expulsion of war criminals, the enactment of the Constitution of Japan, the establishment of the sovereignty of its people, the adoption of absolute pacifism embodied by Article 9 of the Constitution, and various democratic provisions such as equality between men and women were the cornerstones of the construction of such a new nation and the minimum conditions for the restoration of national sovereignty. In other words, the starting point of postwar Japan as a sovereign nation and its basic principles itself should be considered to have been inextricably interwoven with the need to condemn its past war of aggression, regret the countless human rights violations that occurred in the process, and to prevent their recurrence. From this point of view, it would be completely out of order to bring up Japan’s national sovereignty to reject the claims of victims of human rights violations by the prewar Japanese state. The very existence of both of national sovereignty and people’s sovereignty in postwar Japan demands a sincerely responsive attitude toward the complaints of the former “comfort women”.
The above is a historical argument, but the same can be said legally from the preamble of the Constitution of Japan. The preamble of the Constitution of Japan is as follows.
We, the Japanese people, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this Constitution. Government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people. This is a universal principle of mankind upon which this Constitution is founded. We reject and revoke all constitutions, laws, ordinances, and rescripts in conflict herewith. We, the Japanese people, desire peace for all time and are deeply conscious of the high ideals controlling human relationship, and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world. We desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth. We recognize that all peoples of the world have the right to live in peace, free from fear and want. We believe that no nation is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations. We, the Japanese people, pledge our national honor to accomplish these high ideals and purposes with all our resources.
First of all, as the Preamble says, the principle of people’s sovereignty, which is the substance and basis of national sovereignty, is based on Japan’s ‘peaceful cooperation with all nations’ and its determination that ‘never again shall we be visited with the horrors of war through the action of government.’ If this is the case, then it can be said that to compensate the victims of that Japanese military “comfort women” system which thoroughly destroyed such ‘peaceful cooperation’ and occurred as an integral part of the ‘horrors of war’ caused by the ‘action of the government,’ is the only way to establish national sovereignty.
Furthermore, the Preamble states proudly that being ‘deeply conscious of the high ideals controlling human relationship,’ trusting ‘in the justice and faith of the peace-loving peoples of the world,’ and desiring ‘to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth’ are vital foundations and basic principles of the postwar Japanese nation. However, it is clear that the Japanese military “comfort women” system before and during the war was an ‘action of the government’ that betrayed the ‘high ideals controlling human relationship,’ trampled on the ‘justice and faith of the peace-loving peoples of the world,’ and systematically created ‘tyranny and slavery, oppression and intolerance.’
What is even more decisive is the Preamble’s statement that ‘We believe that no nation is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations.’ In other words, the premise of sustaining our ‘own sovereignty’ is to obey ‘laws of political morality’ that ‘no nation is responsible to itself alone.’ However, dismissing the complaints of the former “comfort women” who suffered enormous human rights violations due to the actions of the Japanese state is making Japan ‘responsible to itself alone’ and tramping on ‘laws of political morality.’ Therefore, the principle of Japanese national sovereignty as articulated in the country’s Constitution clearly demands that the Japanese government should not reject the former “comfort women” but wholeheartedly accept it. In other words, the sovereignty principle of the Japanese state should not be considered a cold shield that rejects the complaints of the former “comfort women” but a warm hand that reaches out to them.
The preamble of the Japanese Constitution concludes by saying, ‘We, the Japanese people, pledge our national honor to accomplish these high ideals and purposes with all our resources.’ However, dismissing the complaints of the former “comfort women” on the pretext of the principle of sovereignty is nothing but damaging ‘our national honor’ and betraying the ‘high ideals and purposes.’
Thus, it is reasonable to interpret the Preamble of the Japanese Constitution, both as a whole and in its component of logic, as putting a certain restriction in respect to Japan’s sovereign principle, at the very least with regards to the serious human rights violations and their victims produced in the process of the Japanese aggression and colonization. Therefore, not only the general principle of human rights protection in the interpretation of customary international law but also the peculiarity of the principle of sovereignty in the Japanese Constitution should make the argument of sovereign immunity untenable concerning the claims of the former Japanese military “comfort women.”
Article 9 of the Japanese Constitution and its self-restraint of the sovereign principle
In relation to the above points, I will comment about their relationship to Article 9 of the Constitution. As is common knowledge in constitutional law studies in Japan, the supreme norm of a country is its constitution, not international treaties. If there is a contradiction between some constitutional provisions and some international treaties, the constitution takes precedence, while respecting the spirit of international treaties.
For example, under the UN Charter and other international treaties sovereign nations have the right of self-defense, and even though warfare is excluded as a means of settling international disputes, the right of self-defense through its military force is allowed in the case of sudden and unjust aggression from other nation(s), and the existence of a standing army for this purpose is also recognized. Furthermore, not only this right of individual self-defense but also the right of collective self-defense is recognized under the UN Charter. However, as the leftist constitutional scholars often say (Urata, 1995), the Japanese Constitution denies not only the right to collective self-defense but also the right to individual self-defense (the right to use military force to repel sudden and unjust aggression or to prepare some kind of standing army or military force for that purpose). It can be said that the Japanese Constitution restricts the rights granted under international treaties.
The same logic can apply to the relationship between the principle of sovereign immunity, which is a principle that customary international law recognizes, and the issue of the former “comfort women.” Even if sovereign immunity is recognized under international law, the Japanese Constitution, including its preamble, imposes an exception to sovereign immunity in relation to war crimes committed by the state itself.
Furthermore, it can be said that the very existence of Article 9 of the Constitution itself restricts the principle of national sovereignty within certain limits. The nineteenth century, when the principle of absolute sovereign immunity of nations was recognized, was the era of the heyday era of imperialism, when the great powers were ‘responsible to itself alone,’ had no faith in the ‘justice and faith of the peace-loving peoples of the world,’ and created ‘tyranny and slavery, oppression and intolerance’ everywhere on the earth. It was this imperialist system of sovereign nations that led to the incorporation of barbaric principles such as absolute immunity into customary international law. The position of finally settling any international conflicts through warfare was behind this principle of absolute immunity.
However, both the Preamble and Article 9 of the Japanese Constitution reject such a position. Therefore, they deny the absolute principle of national sovereignty, which is the basis of absolute immunity, and reject the right of armed self-defense, which materially supports such a “principle.” In other words, the principle of national sovereignty is already restricted in postwar Japan from the standpoint of pacifism and international cooperation.
As is obvious, of course, the postwar Japanese state has not been self-restricting its national sovereignty in a spirit of pacifism and international cooperation, but in the forms of military alliance with the US, permitting a multitude of US military bases in the country, granting various privileges to the US military and its personnel, and mechanically following US imperialist military actions. Japan has self-restricted its national sovereignty via these means. This situation is the exact opposite of the self-imposed restraint that is envisioned by the Japanese Constitution. In other words, the postwar Japanese state does not restrict the sovereignty of the nation as it should have done since the end of the war (via pacifist and international cooperative self-constraint) but restricts the sovereignty of the nation precisely as it should not have done through militarist and imperialist considerations. These considerations, when exercised against the former “comfort women” in the present, are revealed to have established an extremely unfortunate basis for the contemporary nation.
Foreign Minister MOTEGI Toshimitsu, 2021. Regarding the Confirmation of the Judgment of the Seoul Central District Court of the Republic of Korea in the Lawsuit Filed by Former Comfort Women and Others. [online] Available at: <https://www.mofa.go.jp/press/danwa/press6e_000269.html> [Accessed 1 August 2021].
JiJi Tsushin, 2021. Suga Shusho ‘danjite ukeirezu’ ianhu sosho, kyakka wo youkyu. [online] Available at: <https://www.jiji.com/jc/article?k=2021010801016> [Accessed 1 August 2021].
Onchi, Yosuke, 2021. Hanketsu itten, shuken menjo tekiyo, moto ianfu sosho de kankoku chisai: Moon seiken no iko eikyo ka. Nihon Keizai Shinbun, [online] Available at: <https://www.nikkei.com/article/DGXZQOGM214TP0R20C21A4000000/> [Accessed 1 August 2021].
Seo, Daegyo, 2021. ‘Nihon eno kougeki deha nai,’ ‘IJC ha osorenai’: ianhu sosho no daihyo bengoshi ga kataru ‘nihon seihu baisho sosho hanketsu’ no subete. Yahoo News, [online] Available at: <https://news.yahoo.co.jp/byline/seodaegyo/20210114-00217560> [Accessed 1 August 2021].
Yamamoto, Seita, 2021. Kokusaiho no mirai wo kirihiraku kakkiteki hanketsu. Shukan Kinyobi, (no. 1316).
Ueno, M. and Nakamura, A., 2021. Nikkan kankei no hiekomi sarani: moto Ianfu sosho hanketsu no shogeki. Tokyo Shinbun, [online] Available at: <https://www.tokyo-np.co.jp/article/78970> [Accessed 1 August 2021]. Urata, Ichiro, 1995. Gendai no Heiwa-shugi to Rikken-shugi. Tokyo: Nihon-Hyoron-sha.
★Other article by Seiya Morita