Historic judgment that violates human rights does not apply to sovereign immunity, 2021.1.8 South Korean court orders Japan to compensate survivors of Japanese military "comfort women"

On January 8, 2021, the 34th Civil Division of the Central District Court in Seoul, South Korea, issued a judgment on the case of the survivors of the "comfort women" of the Japanese army against the Japanese government ( 2016 가합505092 Compensation for damages (기) ). The Seoul Central District Court determined that the Japanese government must compensate the 12 plaintiffs with 100 million won each.

Because the Japanese government of the defendant has always maintained that the South Korean court is not qualified to hear the case, it refused to accept the complaint and refused to appear in court. In theory, the Japanese government can appeal to the second instance before January 23 if it refuses to accept the judgment after the judgment on the 8th. However, because the Japanese government has always denied that the South Korean court can hear this case, if the Japanese government once appeals to the second instance, it will represent the Japanese government to recognize the South Korean court's judicial hearing rights, which will contradict the Japanese government's previous claims, so the outside world is in 8 The case can almost be judged to be final.

As expected, the Japanese government did not appeal for the second instance until January 23. In this case, it was determined that the Japanese government lost the case and must compensate the 12 plaintiffs with 100 million won in compensation each.

* At the same time, a South Korean court filed 2 lawsuits against the Japanese government by survivors of the Japanese military's "comfort women". Another case was originally scheduled to be pronounced on January 13, 2021, but the court abruptly stated two days before the sentencing (January 11, 2021) that it would respond again on March 24. Although it is impossible to determine whether the court suddenly asked another lawsuit to plead again, whether it was affected by the case pronounced on January 8, what is certain is that it is very rare for the court to suddenly request another plea two days before the original sentencing date. In this case, the judgment date of the lawsuit is bound to be postponed.

It all started seven years ago

The lawsuits issued by the No. 8 Judgment can be traced back to 2013 at the earliest.

In August 2013, 12 survivors of the "comfort women" of the Japanese army, including Shu Chunjie, Jin Junzi, Li Yushan, and Li Yuxian (the remaining 8 did not disclose their real names), asked the Japanese government for civil damages. However, the Japanese government has always been reluctant to cooperate with civil mediation (Japanese: civil mediation). According to the litigation process of the South Korean court, as long as the mediation is not established, it will automatically become a lawsuit (Japanese: litigation transfer ) without the plaintiff’s application. Officially entered civil proceedings in January.

However, the Japanese government, which refused to cooperate from the beginning to the end, refused to accept the complaint, which made the trial of the case come to a stalemate. In April 2019, the South Korean court made the case take effect in May 2019 by public service, and the lawsuit was officially launched.

Next: Litigation Issues: Jurisdiction and "Sovereign Immunity"

Back to previous page: It all started seven years ago

Litigation Issues: Jurisdiction and "Sovereign Immunity"

The biggest point of contention in this lawsuit is that since the defendant is the Japanese government, does the South Korean court have jurisdiction (Japanese: jurisdiction) to hear this case?

The question of whether the South Korean court has jurisdiction will involve the concept of " sovereign immunity (state/sovereign immunity, Japanese: 娩権 exemption)" that the Japanese government and Japanese media have kept referring to after the verdict.

Japan claims: South Korean courts have no jurisdiction

The Japanese government has always maintained that because the defendant in this case is the Japanese government (country), the South Korean court is not qualified to hear this case. If the survivors of the Japanese military "comfort women" want to harass the Japanese government, they should go to Japan to fight. Litigation ( Additional: It is not that the survivors of the Japanese army's "comfort women" did not go to Japan to fight a lawsuit, but all the related cases filed by ringing the bell in Japan were either dismissed or ended in defeat ).

The Japanese government's interpretation of "sovereign immunity" is that all sovereign countries are equal to each other, and the courts of one country cannot hear lawsuits in which the government of another country is the defendant. Therefore, the Japanese government has been claiming in front of the media that the South Korean court is not qualified to hear this case, because the Japanese government has sovereign immunity in South Korea, which is an "international practice". If the South Korean court dares to try this case, it will break the "international practice".

It must be noted here that the Japanese government did not appoint a lawyer or send a representative to appear in court from beginning to end. None of the above-mentioned content of the Japanese government's propaganda through the media did not express the defendant's position to the South Korean court through judicial channels. Therefore, the South Korean court will not cite the above-mentioned claims of the Japanese government through the media's publicity to the air.

Jurisdiction depends on South Korean courts

Second, whether the court is qualified to hear this case is not the party's (defendant's) decision, but the court's authority. Therefore, regardless of the Japanese government's (defendant's) claim through the media that "the South Korean court is not qualified to hear this case", the decision on whether the court can hear this case has always been in the hands of the South Korean court.

Judging from the results, since the South Korean court has already made a judgment, it means that the South Korean court has determined that the South Korean court is qualified to hear this case (the South Korean court has jurisdiction). The South Korean court held that:

1. The illegal acts committed by the Japanese army against the comfort women victims occurred on the territory of South Korea
2. The victim is a South Korean national
3. From the existing report of the United Nations Human Rights Commission and other materials, it is no longer necessary to go to the comfort station to conduct on-the-spot investigation
4. Plaintiffs have filed lawsuits all over the world, and the Japanese government should expect plaintiffs to file lawsuits in South Korean courts as well
5. International adjudication jurisdiction is not exclusive
6. This lawsuit will not affect the fairness of the litigants, and this case has international jurisdiction

Based on the above reasons, the South Korean court determined that this case could be tried by the South Korean court.

Having said that, although the defendant's Japan has not appointed a lawyer or sent a representative to appear in court from beginning to end, this does not mean that the plaintiff in this lawsuit can be easily fought in a South Korean court. Because the biggest hurdle of this lawsuit is to convince the South Korean court that the South Korean court is qualified to hear this case, especially the part of " Does Japan have sovereign immunity in this lawsuit? ".

Next: Sovereign Immunity with Resilient Space

Back to previous page: Litigation Issues: Jurisdiction and "Sovereign Immunity"

Sovereign immunity with elastic space

Speaking of the sovereign immunity that the Japanese government has been claiming in the media as "international practice", there is no such "practice", and not all legal disputes apply to sovereign immunity.

"Absolute Immunity" Before the 19th Century

Looking back at the international understanding of sovereign immunity, in the past (before the 19th century) when the concept of sovereign immunity was first introduced, it was generally believed that all legal cases were only related to the sovereignty of other countries. In order to facilitate the business needs of diplomatic representatives, countries Based on the principles of mutual respect, equality and mutual benefit, everyone enjoys diplomatic immunity. This concept is also known as " absolute immunity" (Japanese: absolute immunity).

The concept of "absolute immunity" is exactly the same as the Japanese government's external statement on this lawsuit - the Japanese government believes that "all sovereign countries are equal to each other, so the Korean courts cannot hear the lawsuit in which the defendant is the Japanese government."

From "absolute immunity" to "limited immunity"

However, the concept of "absolute immunity" began to change after the 19th century, and was replaced by the concept of " limited immunity (Japanese: limited immunity)".

For example, sovereign immunity has been largely excluded from the commercial conduct of states since the 19th century. In addition, when a diplomat of a certain country encounters a problem in violation of local laws in another country, the diplomat can claim that he has diplomatic immunity in the local area (diplomatic immunity), which is a practice of limiting immunity. In general, most countries now adopt the concept of restrictive immunity, including Japan and South Korea, the parties to this case.

International Convention on Sovereign Immunity

Back to this lawsuit. At present, the relevant international conventions on sovereign immunity mainly include the European Convention on State Immunity in 1972 and the United Nations Convention on Jurisdictional Immunities of the United Nations in 2004. States and Their Property ). However, the former is only applicable to the 8 EU countries that have joined, and the latter has not taken effect at all, so in this case, neither of the two conventions is applicable.

No domestic law, follow international practice

In addition, including Japan, which has been claiming that it has sovereign immunity this time, not all legal disputes in Japan apply sovereign immunity.

Including Japan and other 10 countries, in order to comply with the United Nations "United Nations Convention on Jurisdictional Immunities of States and Their Property", regardless of whether the Convention is in force or not, these 10 countries have formulated domestic laws in their own countries to regulate the scope of sovereign immunity. Take Japan's "Act on the Civil Jurisdiction of Japan with respect to a Foreign State, etc. " as an example, which clearly states which situations do not apply to sovereign immunity .

As for countries like South Korea that have not formulated domestic laws on the scope of sovereign immunity, it is up to the courts to determine whether the legal disputes apply to sovereign immunity, depending on the international practice at the time.

So based on the current international practice, does Japan enjoy sovereign immunity in this case in the South Korean court?

Next page: Is "Sovereign Immunity Not Applicable for Violations of Human Rights" an international practice?

Back to previous page: Sovereign immunity with resilient space

Is "Sovereign Immunity Not Applicable for Violations of Human Rights" an international practice?

The South Korean court clearly pointed out in its judgment that South Korea has no domestic law on sovereign immunity, so in accordance with international practice, the Japanese (imperial) government’s “criminal acts against the comfort women” violated the law of peremptory norm (peremptory norm). jus cogen) , so sovereign immunity does not apply.

Although the South Korean court stated in its judgment that it was "in accordance with international practice", in fact, the concept that "criminal acts against humanity do not apply to sovereign immunity" only gradually emerged in the 20th century. At present, there are not many relevant jurisprudence, and there are still a small number of countries that believe that "sovereign immunity is not applicable to human rights issues". In legal practice, it is not yet a general principle that has reached a consensus of the majority. If it is an international practice to say that "human rights issues do not apply to sovereign immunity", there is actually room for reservations. But what is certain is that after the South Korean judgment is released, there will be another relevant case that can be cited in the future.

The plaintiff's lawsuit on the dispute over the Japanese military's "comfort women" mainly cited the Greek Distomo lawsuit determined by the Supreme Court in 2000 and the Italian Luigi Fellini lawsuit in 2004. Ferrini) event .

Grecian Distomo Holocaust Victims Vs. (Nazi) Germany

In June 1944, the village of Distomo in Greece was occupied by the German Nazis, and 214 local civilians were killed by the Nazi SS in an event known as " The Distomo massacre. " ) ".

In 1995, a total of 11 survivors of the incident filed a lawsuit in the Greek District Court, asking Germany to seek compensation. The process of this lawsuit is the same as the case that the South Korean court accepted the Japanese army's "comfort women" lawsuit, the defendant's Germany refused to accept the complaint, and then the Greek district court believed that the defendant's Germany had no sovereign immunity in this case, so On September 25, 1997, the plaintiff's request was accepted and the proceedings were formally entered into. During the proceedings, the defendant's Germany all participated in the lawsuit (this is completely different from what Japan did this time), and the lawsuit was appealed to the Supreme Court of Greece in this way.

On May 4, 2000, the Supreme Court of Greece held that the Distomo massacre was a tortious act that occurred in Greece, and sovereign immunity could not be applied in accordance with the international practice " tort exception (Japanese: wrongful act exception) " . In addition, the Supreme Court of Greece defined this case as an act of killing, and the killing was not included in the scope of armed disputes (*) , so it believed that the defendant's (Nazi) Germany had violated the law of coercion first, and did not recognize Germany's sovereign immunity in this case. The right to dismiss the appeal of the defendant Germany.

*The term “dispute of force” is specifically mentioned here because the sovereign immunity is applied to “military conduct under a conflict of arms” in international law. The Greek Supreme Court here defines killing (slaughter) as not an act of armed conflict, which can avoid sovereign immunity.
As for the Japanese military's "comfort women" lawsuit, which is mainly discussed in this article, because the Korean peninsula was not a battlefield during World War II, what happened on the Korean peninsula did not belong to "military behavior under armed conflict." The term armed conflict must refer to the battlefield scene.

Luigi Fellini in Italy vs. (Nazi) Germany

In 2004 there was also a damages lawsuit in Italy alleging forced mobilization by Nazi Germany during World War II, following the decision of the Supreme Court of Greece. The incident is often referred to by the name of the plaintiff, Luigi Ferrini.

Fellini was caught in Nazi Germany for forced labor in Italy during World War II. In 1998, Fellini decided to seek compensation from Germany in an Italian court. Initially, the Italian district court rejected Fellini's claim on the grounds that the defendant, Germany, had sovereign immunity. However, on March 11, 2004, the Supreme Court of Italy remanded the case to the first instance on the grounds that " sovereign immunity does not apply to international crimes that violate ethics or cause major violations of fundamental human rights ".

At the first trial, it was deemed that the incident had exceeded the legal time limit, and Fellini's request was again dismissed. However, after appealing to the second instance, the High Court agreed with Fellini's claim and ruled that Germany must compensate Fellini.

Italian courts: last resort for victims of gross human rights violations

The Italian court held that, whether it is the UN Charter, the European Convention on Human Rights, or the Italian Constitution, the right of the Italian people to sue is guaranteed. In the case of a major human rights violation that violates the law of coercion, such as Fellini, in order to protect the victim's right to sue, the victim can as a last resort for legal remedies .

After Filini won the case, Nazi victims across Italy came forward to sue Germany in the Italian District Court. For example, after Nazi Germany killed 203 civilian victims in the Italian town of Civitella in 1943, and later filed a damages lawsuit against Germany, the Italian High Court found that, like the town of Civitella, there were already criminal cases that had been tried through military courts, Civil lawsuits can also be filed incidentally.

Germany, unhappy with Italian ruling, sues ICJ

Germany maintains that there is no such practice in current international law, and sovereign immunity is also applicable to " military conduct under armed conflict ". Therefore, after the verdict in the Fellini case was released, Germany believed that the Italian court's failure to recognize Germany's sovereign immunity violated international law, and Germany therefore sued Italy to the International Court of Justice (ICJ). As for Greece, which had previously been ruled by the district court that Germany must compensate the survivors of the victims of the Distomo massacre, Greece participated in the case as a non-participant.

The ICJ delivered its judgment on February 3, 2012. ICJ believes that aside from the international practice that sovereign immunity does not apply to tortious acts, Germany can claim that Fellini's lawsuit has sovereign immunity in Italy from the point of "military conduct under armed conflict", and the Italian courts The reasons given have no precedent in the past precedents. Therefore, the German side has adopted the opinion and rejected the judgment of the Italian court, holding that the Italian court has no jurisdiction over the Fellini lawsuit.

New Italian law unconstitutional

Immediately after the ICJ judgment was released, the Italian Congress established a new domestic law in January 2013, requiring the judiciary to encounter similar lawsuits in the future and be obliged to declare that these events have exceeded the jurisdiction of the Italian courts.

However, the Italian judiciary is not a fuel-efficient lamp either. Italy's Constitutional Court believed that this new law violated the right of the people to file a complaint guaranteed by the Italian Constitution, so it immediately declared the new domestic law unconstitutional on October 22, 2014.

The current progress of legal proceedings related to "violation of human rights does not apply to sovereign immunity" stops here.

Next page: The meaning of this verdict , and the speech to the air

Back to the previous page: Is "the violation of human rights does not apply to sovereign immunity" an international practice?

The meaning of this judgment

This is the third case in which a South Korean court has ruled that Japan must compensate 12 survivors of the Japanese army's "comfort women" and the first in Asia.

In view of the fact that most of the victims of World War II have passed away, and the survivors are all of advanced age, in addition to the current South Korean court there is another ongoing lawsuit concerning the "comfort women" of the Japanese army, the South Korean court this time. After the verdict is released, it will not necessarily lead to more victims of World War II in South Korea to come forward to accuse Japan.

However, after this judgment was released, there is indeed a new case outside Europe that "sovereign immunity does not apply to human rights issues", which can be used as a reference when encountering similar disputes in the future. In particular, Asian countries such as Japan and South Korea do not apply the European Convention on State Immunity. In addition, Japan and South Korea were colonial mother countries and the relationship between the colonies at the time of World War II. The lawsuit or the Italian Luigi Fellini lawsuit are different.

Shout out to the air

Although the Japanese government has never appointed a lawyer or sent a representative to appear in court this time, and has only spoken to Kong through the media, it is still possible to check whether the Japanese government's argument against Kong is justified.

Doubt 1: Japan is no longer absolute immunity

First of all, the Japanese government has been advocating to the media this time that "all sovereign countries are equal to each other, so South Korean courts cannot hear lawsuits where the defendant is the Japanese government." This is the concept of "absolute immunity". But Japan is now not using absolute immunity, but limited immunity.

In its judgment on July 21, 2006, the Supreme Court of Japan stated that sovereign immunity is not applicable to commercial acts such as private law and business management. In addition, Article 10 of the " Law on Civil Judgments of Foreign Countries and Other Countries " passed in 2009 also states that sovereign immunity is not applicable to claims for personal or financial damages caused by tortious acts. Therefore, even if South Korea has no domestic law on sovereign immunity today, according to the current domestic laws of Japan, sovereign immunity is no longer applicable to tortious acts, and the Japanese government's external claims are untenable even in its own country.

According to the logic of Japanese domestic law, this lawsuit has legal effect

Furthermore, the Korean peninsula has been a colony of the Japanese Empire since before the war, which actually makes this lawsuit a little easier than the Greek Distomo lawsuit and the Italian Luigi Fellini lawsuit.

The Greek Distomo lawsuit is that the court must first define "killing (massacre) is not an act of armed conflict" before it can use the concept of "tort does not apply to sovereign immunity". The Italian Luigi Fellini lawsuit did not use the argument that "the infringement does not apply to sovereign immunity" because the location of Luigi Fellini's injury was not in Italy.

The victims of the "comfort women" of the Korean-Japanese army are victims of "comfort women" on the Korean Peninsula through fraud or forced removal. The victim's location is from the Korean Peninsula, and means such as fraud or forced removal are torts. These two points alone can use "the sovereign immunity of infringement does not apply", and it is also within the effective scope of South Korean law.

Doubt 2: Japan has appointed representatives to appear in court in similar cases in the past

In addition, Japan has never appointed a lawyer or sent a representative to appear in court this time on the grounds that the South Korean court has no jurisdiction. But in fact, Hwang Geum Joo and other 15 Japanese military "comfort women" survivors (6 Koreans, 4 Chinese, 4 Filipinos, and 1 Taiwanese) had on September 18, 2000, When the U.S. District Court for the District of Columbia filed a complaint with Japan, the defendant, Japan, asked lawyer Craig A. Hoover to handle the litigation process, and also appeared in court on his behalf.

Although it was ultimately because of sovereign immunity, the case was dismissed from the first instance to the third instance, but at least it proves that Japan has never appointed a lawyer, nor has it since the beginning of this time, on the grounds that the South Korean court has no jurisdiction. The act of sending representatives to appear in court can be said to be rotten from beginning to end.

References

1. South Korea's Central District Judge, Japanese Army "comfort women" damage compensation lawsuit collection
2. Judgment of the 34th Civil Division of the ソウル Central District Court
3. Judgment, The 34th Civil Chamber, Seoul Central District Court , translated by The Korean Council for Justice and Remembrance for the Issues of Military Sexual Slavery by Japan and Dasol Lyu, MINBYUN — Lawyers for a Democratic Society
4. Xu Taijiao: "Japanese への顒撃ではない" "ICJ は fear れない"...the representative of the comfort women's lawsuit, the nurse が る "Japanese government compensation judgment" の Quan て
5. Yamamoto Harita: The Japanese Army's "Comfort Women" Litigation Is Exempted
6. Yamamoto Harita:ソウル Central District Court (2016 가합58023909) Opinion (the plaintiff in this case ら が Japan の judicial hand に よ り rescue 済 さ れ る possibility)
7. Zhang Qiang: Analysis of the Development Trend of State Sovereign Immunity

The original link is Japanese current affairs まとめ translation by Kaori Ishikawa