Japan and Korea: The Courts and Wartime Compensation

November 17, 2015 7:00 AM

The bilateral summit between Park and Abe was dominated by the comfort women issue. A major question that is likely to arise as the negotiations between the two governments go forward is compensation for the victims. To date, Japan has managed to avoid the issue by reference to the Claims Agreement signed in conjunction with the bilateral treaty that normalized relations in 1965. A large aid package was extended at the time, but it was quite explicitly not granted as compensation for war-time wrongs. The treaty appears to be quite explicit on the point of claims:

"Article II. 1. The Contracting Parties confirm that [the] problem concerning property, rights and interests of the two Contracting Parties and their nationals (including juridical persons) and concerning claims between the Contracting Parties and their nationals, including those provided for in Article IV, paragraph (a) of the Treaty of Peace with Japan signed at the city of San Francisco on September 8, 1951, is settled completely and finally.

(Article IV(a) of the San Francisco peace treaty deals with property claims; as allied parties—and signatories of the treaty—Indonesia and the Philippines signed even more expansive waivers of their claims).

Over the 1990s, comfort women groups filed eight cases for damages in Japanese courts; all were turned back. In 2000, a mock international tribunal found the Japanese government guilty of war crimes, but shaming had little effect either. And in 2000, there was even an effort—ultimately unsuccessful—to use the Alien Tort Statute to file cases in US courts (Maki Arakawa has a useful piece on the case here; information on the litigants’ background can be found here.) Rather, the Japanese government and business—with public support—set up an Asian Women’s Fund to provide compensation in a way which did not directly joint the issue of either government or private sector culpability.

Recently, the worm has turned on another front: compensation for forced labor. A crucial 2012 High Court ruling in Seoul overturned earlier Korean court decisions that had supported Japanese claimants against personal tort claims. The court put the Japanese effort to limit liability in the 1965 agreements on its head. The ruling argues that precisely because the economic assistance that the Japanese government provided the ROK (in Article I of the 1965 Claims Agreement) was not connected with any recognition of Japanese guilt, “claim rights for tort against humanity involving Japanese government power or colonial rule tort damages were not addressed in Claims Agreement. Thus, individual damages claim right has not expired due to Claims Agreement [sic].”

Since this ruling, South Korean courts have rejected use of the 1965 Claims Agreement to argue against compensation claims. To date, these cases have not addressed the comfort women issue but have sought compensation for labor conscription:

  • Nippon Steel & Sumitomo Metal (NSSM) (Nov. 2015) The Seoul Central court ruled that NSSM must pay approximately $86,000 to eight elderly forced labor victims.
  • Mitsubishi Heavy Industries (June 2015) A high court ruling upheld a lower court ruling that ordered Mitsubishi Heavy Industries to pay 100 million won to four Korean women who were forcibly conscripted as laborers during WWII. The court also ordered the company to pay a 102 million won settlement to the family of a deceased labor conscript.
  • Nachi-Fujikoshi (Oct. 2014) Nachi-Fujikoshi was ordered to pay compensation to dozens of Koreans who were forced to work in its factory during Japan’s colonial rule. The damages were between $75,800 to $94,800 and included settlements for families of deceased conscripts as well.
  • Nippon Steel & Sumitomo Metals Corp (July 2013) NSSM was ordered to compensate four forced laborers approximately $88,000 rejecting the firm’s argument that it was a different entity from the original company where the Koreans worked.

Japanese firms have appealed these decisions and to our knowledge no funds have actually been paid out.

Will these cases influence the Japanese government’s approach to the compensation of comfort women? If so, it will probably be indirectly. Unlike those conscripted into the zaibatsu, the comfort women to our knowledge do not have enduring business entities to sue. In addition the number of litigants keeps falling through natural attrition; remaining comfort women are all in their 80s at least. Unless compensation is extended to families, there may be little left to pay out.

Japan has acknowledged culpability for the comfort women in the Kono statement, but not in a way that would acknowledge the legitimacy of victims' claims against the Japanese government. The Abe administration could for the first time offer public compensation to the remaining victims. An alternative would be to funnel money to women’s groups for activities and education around the issue. You can imagine how that would play on the Japanese right. Stay tuned.

 

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