1. IntroductionFootnote 1
Recently, two courts in Korea issued conflicting rulings on the issue of state immunity as raised in a lawsuit brought by Japanese Military Comfort Women against Japan for torts resulting from constant violence, torture, and sexual assault at comfort stations. The defendant in both cases was the State of Japan, which argued that the plaintiffs’ claims should be dismissed because they sought damages for the sovereign acts of a foreign state subject to state immunity. The judgment of the Seoul Central District Court 2016Gahap505092 (the “Admission Judgment”) rejected Japan’s defense and held that the Korean courts had jurisdiction over the defendants, even if the acts of violence, torture, and sexual assault against the plaintiffs were sovereign acts of the state.Footnote 2 However, only three months later, the Seoul Central District Court’s judgment 2016Gahap580239 (the “Dismissal Judgment”) dismissed the plaintiffs’ claims, finding that the exception of state immunity was not recognized under current customary international law.
In both cases, the issue of state immunity was at the center of the litigation, and the plaintiffs and defendants engaged in a vigorous legal battle over the issue, with the court’s decision providing a thorough review of state immunity. Looking back at the jurisprudence of both decisions, there seems to be a theoretical confusion about the application of the principle of state immunity to an incident between a state and its colony. In this article, I will analyze the discourse in the case that reveals the jurisprudence’s failure to address coloniality, compare the opposite yet similar decisions, explore how the formalist discussion of state immunity obscured substantive issues, and propose an alternative framework for how the law might accept and represent the victims’ ambivalent colonial identities.
2. The principle of state immunity
State immunity (also known as “sovereign immunity” or “jurisdictional immunity”) is a general principle of customary international law, based on the practice of nations, according to which domestic courts have no jurisdiction in actions against foreign states and a state is not subject to foreign jurisdiction over its acts and property. It is based on the principle of sovereign equality, whereby “one equal does not rule over another equal” (par in parem non habet imperium). Historically, the doctrine of state immunity has evolved from an absolute theory of state immunity, which holds that other states are immune from the suit for the actions of foreign states, regardless of the nature or content of those acts, to a restrictive theory of state immunity, which does not recognize state immunity for non-sovereign or commercial acts of foreign states. The Korean Supreme Court also held that a state is not subject to the jurisdiction of a foreign state under international custom, and therefore Korea cannot exercise jurisdiction over a foreign state as a defendant Footnote 3 and took the position of absolute immunity. However, in 1998 it was decided that unless there are special circumstances such as the judicial acts of a foreign country committed within the territory of Korea are closely related to its sovereign activities and the exercise of jurisdiction over them may constitute an unreasonable interference with the sovereign activities of the foreign country, the courts of Korea may exercise jurisdiction over the judicial acts of a foreign country”Footnote 4, thus explicitly abandoning the theory of absolute sovereign immunity and turning to the theory of restrictive sovereign immunity. It is important to understand the nature of customary international law when applying the norm of State immunity. A key feature of such law is that it is shaped and sustained by state practice, so that it is not a frozen substance, but rather a fluid and changing body of law. This dynamic nature of State immunity is important to consider in the context of comfort women claims.
As is widely known, Comfort Women (ianfu, 慰安婦) refers to women who were forced into sexual slavery by the Imperial Japanese Army during World War II. The women, mostly from colonial or occupied countries in East Asia, were coerced or deceived and sent to military brothels known as “comfort stations” to provide sexual services to Japanese soldiers. The countries most affected by this system were Korea, China, the Philippines, Taiwan, and Indonesia. Many of the victims were underage girls who endured long hours of forced prostitution involving physical and sexual abuse, without adequate food, medical care, or basic sanitation. At the root of the two different Korean court rulings is a concern about the theoretical difficulties that the legal status of the Chosun (the former name of Korea) as a Japanese colony poses for the determination of whether or not Japan is immune from liability for the damages suffered by the comfort women. If state immunity is a norm that applies between equal sovereign states through the principle of sovereign equality, it is necessary to ask whether it is reasonable to apply the international legal norm of state immunity to the mobilization of comfort women in a situation where the Korean Peninsula was an annexed colony of Japan.
3. State immunity and colonial torts
3.1. Problems with state immunity for damages caused by colonial mobilization
3.1.1. Italian and Greek court decisions and International court of justice rulings on damages incurred during world war II
3.1.1.1. Ferrini case in Italian supreme court
Luigi Ferrini, an Italian citizen, was arrested by the German army on August 4, 1944, and forced to work in a munitions factory in Germany until April 20, 1945, but was denied prisoner of war status. In 1998, he filed a claim for damages against Germany in the District Court of Arezzo, Italy. The court of first instance dismissed the claim on the basis of Germany’s claim of sovereign immunity, and the Court of Appeal dismissed his appeal. However, on March 11, 2004, the Italian Supreme Court overturned the original ruling, holding that state immunity does not apply to acts of a state that constitute international crimes in violation of jus cogens (Ferrini v. Federal Republic of Germany, 2004), and the lower courts subsequently ruled in favor of the plaintiff.
3.1.1.2. Distomo case in Greek court
In retaliation for the deaths of 18 German soldiers in a raid by Greek resistance fighters near the village of Distomo in southern Greece on June 10, 1944, German occupation forces surrounded the village of Distomo, went house to house, raped, burned, looted, and brutally murdered 218 residents, including infants. On November 27, 1995, 257 survivors of the victims filed an action for damages against Germany in the Greek court for the above-mentioned wrongful acts. The Greek court refused to recognize Germany’s state immunity on the grounds that, under international law, wrongful acts in violation of peremptory norms cannot be considered sovereign acts, and that Germany had implicitly waived its state immunity. The court entered judgment against Germany, awarding damages of approximately $30 million (Prefecture of Voiotia v. Federal Republic of Germany, 2000).
3.1.1.3. Italian court’s decision to grant enforcement based on the Distomo decision
The plaintiffs in the Distomo judgment applied to the Italian courts for permission to enforce the Greek judgment, which was granted by the Florence Court of Appeal on May 2, 2005. The Italian Supreme Court dismissed the German appeal on May 6, 2008. On June 7, 2007, the Distomo plaintiffs commenced enforcement proceedings against Villa Vigoni (a center for cultural exchange between the two countries), a building in Italy owned by the German Federal Government, based on the decision of the Florence Court of Appeal.
3.1.1.4. ICJ judgment – Germany v. Italy
On December 23, 2008, the German government referred Italy to the International Court of Justice (ICJ), claiming that the Italian court had violated the international law of state immunity enjoyed by Germany by issuing the Ferrini judgment and granting enforcement of the Distomo judgment of the Greek court. In response, Italy argued that (i) even if the actions of the German Army constituted sovereign acts of a State, State immunity cannot be invoked for torts such as murder, bodily injury, or property damage committed within the territory of a State, (ii) State immunity cannot be invoked for acts constituting serious violations of jus cogens, such as international human rights treaties; and (iii) State immunity should not be recognized against Germany because the Claimants have no other remedy and bringing an action for damages against Germany in the Italian courts would be the Claimants’ last resort.
On February 3, 2012, the ICJ’s majority opinion held that the Italian court had violated its obligation to respect Germany’s sovereign immunity by denying the state immunity it enjoyed under customary international law, allowing civil proceedings to be brought against it, and allowing a Greek court’s judgment to be enforced in Italy on the grounds that Germany had violated international law in Greece. The majority viewed the issue in the present case as whether state immunity should be granted for acts committed on the territory of the forum State by the armed forces of a foreign State in the course of an armed conflict. It rejected Italy’s argument that state immunity should not be granted to Germany, noting that courts in a number of countries have recognized state immunity for torts committed on the territory of the forum State during an armed conflict (Germany v. Italy: Greece intervening, 2012).
3.1.1.5. The Italian parliament’s implementing legislation and Italian constitutional court’s decisionFootnote 5
Following the ICJ decision, a number of lower Italian courts dismissed the lawsuit on the grounds that Italian courts lacked jurisdiction due to the principle of state immunity, and on January 29, 2013, the Italian Parliament enacted a law requiring Italian courts to decline jurisdiction over cases covered by the ICJ decision and to review judgments that granted jurisdiction in such cases. However, some lower courts have asked the Italian Constitutional Court to review the law enacted by the Italian Parliament on the grounds that it violates fundamental human rights guaranteed by the Italian Constitution, including the victims’ property rights and right to a fair trial.
On October 22, 2014, the Italian Constitutional Court ruled. Taking into account that customary international law on State’s immunity has progressively developed to limit the scope of its recognition to sovereign acts in order to prevent unwarranted violations of individual rights, and that the Italian Constitution places human dignity at the apex of the Italian legal order and that the right to a fair trial is one of the main rights recognized in a modern democratic society, the Court held that the kidnapping and forced labor by the German army constituted serious war crimes in violation of jus cogens under international law and could not be considered a typical and substantial exercise of sovereignty by a foreign State. In addition, the ICJ’s interpretation of the jurisprudence on state immunity would completely negate the right to a trial for victims of crimes against humanity and violations of fundamental human rights, so that state immunity could not be justified. The Court concluded that it is unconstitutional for the law to deny jurisdiction over acts of foreign states that constitute war crimes and crimes against humanity.
3.1.2. The jurisprudence of the two Korean courts
Both judgments (the Admission and the Dismissal) adopted the ICJ’s “Armed Forces” reasoning, which concludes that “the acts committed on the territory of the forum State by the armed forces of a foreign State may be subject to state immunity”. The fact that “the fronts of the Pacific War were in China and Southeast Asia, and the Korean Peninsula was not a place of war at that time” was one of the reasons given in the admission judgment for denying state immunity. And the court concluded: Therefore, it is difficult to say that the acts of the Japanese Empire against the plaintiffs to mobilize comfort women were carried out in the course of an armed conflict. In contrast, the dismissal judgment stated the fact that the Korean Governor General’s Office mobilized its administrative system at the request of the Japanese Armed Forces and forced the victims to become comfort women constitutes acts committed by a foreign state. It continued: stating that the defendants’ acts of procuring comfort women were committed on the territory of the Republic of Korea, which was temporarily under the illegal occupation of the Japanese Empire, and thus constitute acts committed on the territory of the forum State as defined by the jurisprudence of the ICJ. The Dismissal Judgment also declared that Japan’s use of the victims as comfort women was for the military purpose of maintaining the combat strength of the Japanese armed forces. For this purpose, it falls within the definition of an act committed in the course of an armed conflict.”
3.1.2.1. Is it an act committed on the territory of the “forum state” by the armed forces of a “foreign state”?
This divergence in jurisprudence raises a very complex theoretical question: Should systematic exploitation in the context of colonial mobilization be treated in the same way as in ordinary armed conflict or warfare? The terms “forum state” and “foreign state” imply that the parties to the armed conflict are separate states in hostile relations. In general, international law of war governs violence and inhumane acts against members of the opposing group (Lee, Reference Lee2016, p. 163; Cryer et al., Reference Cryer, Friman, Robinson and Wilmshurst2010, p. 284; Prosecutor v. Issa Hassan Sesay, Morris Kallon, and Augustine Gbao, 2009, para 1453). However, the question here is whether the Japanese military’s acts of rape and sexual enslavement of Korean women were committed against members of the opposing group. In the colonial era of the 1930s and 1940s, Koreans were treated as Japanese citizens (at least in international law). Thus, the actions against Korean comfort women were not actions against the enemy, but ostensibly actions against Japan’s own citizens to support the military operation. Therefore, the identity of the Korean comfort women was somewhat ambiguous: they were not belligerents of the enemy state, but practically members of the Japanese army. A study that analyzed the organization of the Japanese military found that the comfort stations were part of the Japanese military, that the operators of the comfort stations were military, not civilian, and that the comfort women were treated as military dependents (Ha, 2009, p. 149). This suggests that the comfort stations should be viewed as military facilities that were deeply intertwined with the organizational structure of the Japanese military.
On the other hand, the resistance and hostility that existed between Japanese soldiers and Korean comfort women cannot be overlooked when considering the pattern of sexual exploitation within the armed forces. Thus, it is difficult to characterize the relationship between Korea and Japan as a “forum state” and a “foreign state” in the context of state immunity. From the perspective of the colonial system, the relationship between the Japanese military and the comfort women is not a foreign act covered by state immunity, but an act within the same state in which colonial racism operates.
3.1.2.2. Is it an act committed “in the course of armed conflict”?
An armed conflict occurs when a state uses military force to defend its interests or claims against another state. However, the harm suffered by the comfort women was not caused by an armed conflict with an enemy state, but rather by their integration into the Japanese military. Japanese military’s actions against comfort women are actually domestic actions born of colonial racism, which refers to the system of discrimination that the empire administers against its colonial subjects. The exploitative actions of an empire against its own colonial subjects are qualitatively different from the actions of an armed conflict between two separate states. For this reason, the principle of state immunity does not easily fit the problems arising from colonial relations, since it is a norm applied between equivalent sovereign states.
If so, in determining state immunity, the courts should have considered the fact that the systematic sexual exploitation of comfort women as part of the Japanese military’s combat performance system was reinforced by the colonial system and its impact on the extent, nature, and duration of the harm. However, the impact of the “colonial rule” on the norm of state immunity was not a primary issue in the trials. Instead, the formalistic discussion of state immunity was the focus of both the court and the relevant legal actors. The admission judgment recognized that the relationship between Japan and Korea was different in nature from an armed conflict between sovereign states, but still failed to go beyond the relationship between the colonial system and state immunity. The dismissal judgment regarded the mobilization of comfort women as the unlawful acts of a foreign state during an armed conflict, without considering the complex dynamics of colonization. There are many aspects of torts arising out of colonial legal relations that cannot be addressed by the usual norms of state immunity. As members of the Japanese armed forces, comfort women traveled extensively together on Japanese military bases and had ambivalent identities due to colonization. This raises important normative questions about whether the Japanese army was a “foreign army” in relation to comfort women victims at the time. The discourse in the lawsuits reveals the lack of a legal framework for dealing with coloniality, and shows how the law has failed to accept and represent the ambivalent colonial identities of the victims.
3.1.2.3. The formation and evolution of customary international law
Since the State immunity has the character of customary international law, it is important to understand its nature. A key feature of customary international law is that it has a flexible and changing nature, rather than being frozen into a fixed substance, as it is shaped and sustained by state practice. Unlike treaties, which derive their validity and binding force from a formal ratification process and remain legally binding even in the face of violations, customary international law is sustained by a shared belief that a particular practice is the current dominant state practice of the international community, and as more states deviate from the existing practice, the practice ceases to be customary international law and the content of customary law changes (Verdier and Voeten, Reference Verdier and Voeten2014, p. 212). This malleable nature of customary international law, in which breaches of norms simultaneously create new precedents and thus drive norm change, is also crucial to the application of customary international law in court proceedings. The fact that the cumulative effect of deviations from practice can change the content of customary international law suggests that courts should be wary of mechanistic applications of existing customary international law, especially when new practices are juxtaposed with existing ones. If courts mechanically apply customary international law as if it were a written rule, without examining the process of norm change as new practices emerge, courts will not be able to change or guide the state practice that constitutes customary international law, but will passively follow existing norms.
The two judgments also provide reasons for this characterization of customary international law. The Admission Judgment stated “The theory of State immunity is not a fixed value. It is constantly being modified in response to the fluctuations of the international order, as evidenced by the fact that the domestic laws of many countries provide for exceptions in which State immunity is not recognized. These developments seem to reflect a shift in the international legal system towards the protection of individual rights.” Referring to the fluid nature of customary international law, the Admission Judgment stated that “the theory of State immunity is intended to respect sovereign States and to ensure that they do not unwittingly submit to the jurisdiction of another State, but not to allow a State which has caused great harm to individuals in another State in violation of jus cogens to avoid compensation by hiding behind the theory of State immunity. In this case, an exception to the customary international law interpretation of State immunity must be recognized.”
However, the Dismissal Judgment takes a different perspective than the Admission Judgment with respect to how new practices that differ from established practices should be treated as they emerge. The Dismissal Judgment takes a strict approach to the question of when to recognize a change in customary international law, stating that “[e]ven if there is a national practice of some states which differs from customary international law, it cannot be said that the binding force of customary international law is naturally excluded until such time as such national practice supersedes customary international law.” In particular, the Dismissal Judgment stated that “if the customary international law of State immunity has changed to recognize exceptions for violations of peremptory norms, it logically follows that the old customary international law recognizing State immunity has been abrogated and a new customary international law has been established, which requires that the new exceptions be supported by State practice to the extent that they constitute ‘general practice’ and are accompanied by ‘opinio juris’”.
It is questionable, however, whether the change in customary international law is as monolithic as the above judgment suggests. The Dismissal Judgment is based on the premise that in order to recognize an exception to State immunity for violations of peremptory norms, there must be a two-step process: the abrogation of existing customary international law and the creation of new customary international law. However, if customary international law is a flexible norm sustained by state practice, then the process of change in customary international law is likely to be a continuous one, contrary to what the Dismissal Judgment presupposes: when some states begin to practice differently from the dominant practice, the existing customary international law order is disrupted, and in the course of this disruption a new state practice gradually becomes dominant. It is difficult to pinpoint the threshold at which a departure from existing norms constitutes new customary international law, but it is still clear that there will be a point in the process of change at which old and new practices coexist. If a new practice emerges with significant quantitative and qualitative implications that are contrary to previous practice, but old practice continues to be adhered to on the ground that existing customary international law has not been completely abandoned, there will be a normative deadlock at which point the content of the new state practice will no longer be reflected in customary international law on the ground that the changed state practice has not become established. In this sense, the Dismissal Judgment’s holding that an exception to a new customary international law can only be recognized once both the “extinction of the old customary international law and the establishment of the new customary international law” have been completed, is a jurisprudence that is unlikely to promote the progressive development of international law, as it overlooks the dynamic nature of the process by which customary international law changes.Footnote 6
4.2.2. An Alternative framework?
4.2.2.1. The Prosecutor v. Bosco Ntaganda
Colonial identities are characterized by resistance, exploitation, and systemic harm, identities that go beyond the binary distinction between enemies and allies to arrive at the paradoxical situation of belonging to the same group. The Ntaganda case, decided by the International Criminal Court in 2019 (Prosecutor v. Bosco Ntaganda, 2019), helps to envision an alternative framework which may serve to break the theoretical deadlock characterizing the comfort women issues. The most controversial aspect of the prosecutor’s indictment against Bosco Ntaganda was the war crimes charge of rape and sexual slavery of child soldiers under the age of 15, which took place in an intra-party context. In response, Ntaganda argued that child soldiers do not meet the requirements of Common Article 3 of the Geneva Conventions as “protected persons” or “persons not taking an active part in hostilities” because membership in an armed group itself constitutes participation in hostilities. Three different Chambers rejected this view and affirmed the Court’s jurisdiction, although these decisions were based on different reasoning.Footnote 7
The preliminary judges clarified that whether or not child soldiers were alleged to be victims of intra-party sexual crimes, they are protected by international humanitarian law which must be determined with respect to the specific moment at which they were subjected to rape or sexual slavery.Footnote 8 At the relevant time, child soldiers could not be considered persons taking an active part in hostilities due to the coercive nature implicit in sexual crimes. Therefore, they could be equated to hors de combat and the sexual crimes committed against them could be qualified as violations of international humanitarian law giving rise to individual criminal responsibility for war crimes.Footnote 9 The Appeals Chamber confirmed the existence of jurisdiction on counts regarding rape and sexual slavery of child soldiers and concluded that international humanitarian law does not categorically exclude protection for victims of crimes in intra-party relations.Footnote 10 With particular regard to rape and sexual slavery, judges concluded that there are no compelling reasons to put limits on who may be victim of such conducts based on status, considering that sexual violence is never justified or necessitated in armed conflicts.Footnote 11
4.2.2.2. Implications for alternative framework
The Ntaganda decision is significant because it explicitly rejected the notion that war crimes can only be committed against victims belonging to opposing groups and clearly stated that war crimes can be committed in intra-party relations in the case of rape and sexual slavery. The decision extended the scope of war crimes of rape and sexual slavery regardless of the victim’s formal affiliation. The jurisprudence of the decision suggests that regarding colonial torts, we need to move beyond the binary identities of the “same group” and the “opposite group”, and focus on the nature of systematic exploitation within groups. The exposure of child soldiers to sexual slavery by other members of the group resembles the sexual exploitation of the comfort women when they became integrated into Japanese military system. Both comfort women and child soldiers were forcibly recruited to perform combat-related duties and were at the same time continuously exposed to sexual harm within the group. The Korean courts should have considered the fact that systematic sexual exploitation of comfort women was reinforced by the colonial system and that it affected the nature, extent and persistence of the damage. In other words, new jurisprudence on how to legally frame damages based on a hybrid identity is strongly needed in post-colonial Korean society.
4.2.2.3. Signs of change : recent decision from Seoul high court
On 23rd of November, 2023, the Seoul High Court overturned the Dismissal Judgment of the first instance and awarded 200 million won in compensation to each plaintiff (Seoul High Court 2021Na2017165). A review of the Court’s new decision reveals that the Court has moved beyond formalistic arguments about state immunity and is approaching the issue as a matter of colonial tort law. For example, the court emphasizes the dynamic nature of customary international law by stating that customary international law on State immunity is not permanent, and that the direction and flow of international law must be taken into account when considering the evolution of customary international law. In addition, with regard to the existence of an “armed conflict” as a prerequisite for the application of State immunity, the Court held that since the Korean peninsula was not in a state of armed intervention such as war at that time, it is difficult to conclude that Japan’s acts of deception and abduction of victims for the recruitment of comfort women took place in the course of an “armed conflict. The decision was not appealed by the Japanese government and has become final.
5. Conclusion
The most arduous aspects of characterizing the Japanese comfort women issue in legal perspective arise from the fact that Japan annexed Chosun (the former name of Korea) as a colony. While it was clear that there was a large-scale, systematic and policy-based rape against the women of the colonial territory, the identity of Korean Japanese Comfort Women was somewhat hybrid or ambivalent. As Korea was regarded as a part of Japanese territory at the time, from the perspective of international law, the comfort women were not belligerent combatants of the enemy state, but practically the constituent members of the Japanese army. Historical evidence suggests that Comfort Stations functioned in close connection with the Japanese army, and comfort women were treated as members of the military. As seen above, in neither lawsuit was how to represent the damages induced by colonial mobilization presented as an issue. Instead, all the litigants - including the court - were focused on the issue of state immunity. However, since the principle of state immunity is a norm applied between equivalent sovereign states, it does not easily apply to the problems arising from colonial relations. Since Korea was annexed as a part of Japan, the process of systematic colonial mobilization was different from that of typical ‘armed conflict’ between belligerent parties. In the same sense, a complex question arises as to whether the torts committed by Japan toward Koreans (in the Korean peninsula) during the colonial era could be regarded as an event that took place in the territories of the forum state (Korea), or as an act of a foreign state (Japan). The two states were integrated in a discriminatory manner, making Korea an “incorporated but unequal” part of Japan. The fact that the largest portion of the comfort women population consisted of Korean women for a long time stems from legal and socio-political dynamics enabled by colonial domination. In these cases, it was necessary to consider whether it was appropriate to simply apply state immunity to colonial torts that occurred in the context of Korea’s historical reality, particularly in the overlap of colonial and wartime situations.
