Compensation for illegal sex slavery- in light of recent Korean Supreme Court case

Korea recently played host to the Prime Minister of Japan. A considerable time had lapsed since the last meeting between these two leaders in May 2012. Some  attributed the delay to the conflicting opinions on certain legal issues. There was much speculation at the outset of the summit as to whether these long-standing legal issues, including that of illegal sex slavery, would be resolved to the satisfaction of both sides. The sex slavery issue refers to an egregious act by Japanese soldiers during World War II, when many young women in Korea, as well as in other parts of Asia under Japanese colonial rule, were abducted to be incarcerated in Japanese army camps and forced to provide “comfort” to Japanese soldiers. The current Japanese government maintains that there is no evidence to support that such sex slavery even existed, which contradicts not only the apology offered by the past administration but also the testimonies of the few surviving victims. Having refused to accept the allegation, Japan is in denial of the responsibility to compensate. At other times, the Japanese government has also dismissed the issue of sex slavery as having been settled in the Agreement between Japan and the Republic of Korea in 1965.(hereinafter ‘1965 Agreement’) This de facto kept the summits few and far between, eventually leading to a rather fruitless end to the summit; while the two leaders have supposedly proposed to move forward, there has been no substantial discussion as to how to resolve the question at issue. In the past, the victims of sex slavery have all been unsuccessful in Japanese courts. However, providing the victim with a chance at justice is likely to be in the interest of Japanese people, as well as the international community as a whole, because, if no consequence flows from wrongdoing of a State, there is nothing to dissuade the State from doing it again. The recent Korean Supreme Court’s decision (2013 Da 208388) handed down in June, 2015 (English summary) which emphasized the mutual cooperation between States in protecting aliens is noteworthy, especially when the chance of invocation of diplomatic protection is low and the protection of individuals is at risk. A closer review of the decision will illuminate the clear way forwards. This case involves a Japanese national asking the Korean Government for compensation in accordance with the Article 7 of State Compensation Act (hereinafter called “SCA”) of Korea for his unlawful detention. Article 7 stipulates that in order for the SCA to apply to an alien there must first be a mutual guarantee between Korea and the state that the alien is a national of. In this decision the Supreme Court provided an interpretation ofthe phrase “a mutual guarantee,” stipulating that the purpose of Article 7 is to “prevent any disadvantages to the Republic of Korea… and promote equity in international relations” and that a mutual guarantee is deemed to be in place as long as the prerequisites for a State compensation claim in Korea and the foreign country are not manifestly disproportionate.  The Supreme Court further stressed that even in the absence of a concrete case in which the corresponding nation has recognized the State compensation claim of a Korean national, the expectation of recognition of such a claim is sufficient, while at the same time explaining that the existence of a treaty between Korea and other nation is not a necessity. Having reasoned as such, the Supreme Court then considered the application of law to the facts. Here the alien was a Japanese national, and the Court reviewed the Japanese law on State compensation. The Court explained that what Japanese law stipulates on State compensation is not materially different from what is provided for in the SCA, and that a Korean national asking for State compensation in Japan is as likely to be awarded such compensation as is a Japanese national. The Court thus deemed there to be such a mutual guarantee in existence, upholding the lower court’s decision to grant compensation in accordance with Article 7 of SCA. As a mutual guarantee, per se, needs a corresponding nation’s cooperation, it is now for us to wait and see if Japanese courts will cooperate in this way with compensation to the victims – something that can obviously not be done by the politicians. While it is true that some Korean nationals in other cases had been previously compensated, none of the victims of sex slavery have ever been compensated by the Japanese government. Some Japanese Civic groups, such as the Asia Women’s Fund, had tried to take the matter into their own hands and paid money to the victims from Korea, Philippines and Taiwan. This unfortunately ended up inflaming yet another controversy, in that it did not recognize the Japanese government’s legal responsibility. While the doctrine of res judicata will bar victims of illegal sex slavery from Japanese courts who have already been unsuccessful in Japanese courts, there may still be a way, given the fact that an international claim is very much distinguished from domestic proceedings. State responsibility as conceived by the International Law Commission (Draft Articles on Responsibility of States for Internationally Wrongful Acts, hereinafter called “ARSIWA”) is in principle a state-to state obligation, but States may also owe obligations to individuals. ARISWA Article 33(1) states that obligations set out in this Part (i.e. consequence of the violation, which is distinct from the responsibility itself) may be owed to (i) another state, (ii) several States, or (iii) the international community as a whole, while ARSIWA Article 33(2) stipulates that this is “without prejudice to any right… which may accrue directly to any person… other than a State.” While this could be interpreted to be a vacuum in the protection of individuals, it is noteworthy that James Crawford mentions in his book, State Responsibility, that “the law of implementation by entities other than states is embryonic… it will be the relevant primary obligations that will determine whether or not a non-state party has any entitlement to claim in the particular circumstances.” There should be little doubt that States hold an obligation to protect individuals, which is at the root of the Constitution, hence the primary obligation. In addition, “The Law of International Responsibility” (also by James Crawford) also concedes that “it is conceivable that all of the secondary rights provided for in ARSIWA extend to individuals,” secondary rights here referring to the implementation of the rights in consequence of the wrongdoing of a State. This suggests that there is no vacuum in international law, but rather a seed that is waiting to bloom. Crimes against humanity should not be brushed over. The victims of sex slavery should be afforded the full protection of international law which should obviously work in a way as to ensure the protection of basic human rights. One of the reasons that Japanese courts had previously held, that the 1965 Agreement settled the claims arising from sex slavery, lacks justification in that the 1965 Agreement by no means reflected the understanding of both parties’ intention to include compensation for individuals. Article 2(1) of the 1965 Agreement lists “property, rights, and interests… including Article 4(a) of the Peace Treaty” as having been settled, and the Article 4(a) of the Peace Treaty is confined to economic claims, including “debts.” There is no mention of other articles such as Article 14, which deals with reparation for the “damage and suffering caused by [Japan] during the war.” More importantly, States may not waive individual rights, especially those that concern basic human rights.   The victims have not much longer to live, and are trying various means to make themselves heard. What with politics and a swirl of international law interacting with domestic law, it will be interesting to see how the situation unfolds in future.

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