Court Decisions in the Republic of Korea on Japan's Accountability for Sexual Slavery of the Comfort Women

Abstract

Abstract On January and April of 2021, two contradictory decisions on the comfort women issue were ruled by two courts in the Republic of Korea (ROK), stirring much controversy on the various legal issues concerning the comfort women. In the January decision, the court held Japan accountable for the acts committed against the comfort women and denied Japan’s immunity in the courts of the ROK because these atrocities constitute crimes against humanity when Japan illegally occupied Korea. On the other hand, the April decision, which was a case for another group of comfort women victims, dismissed the suit by ruling that Japan was rather immune on this issue in ROK courts because state immunity is considered to be part of customary international law. The court specifically referred to the Jurisdictional Immunities case before the International Court of Justice which found that violations of jus cogens as a substantive norm could not trump over procedural matters such as state immunity. As the April case has been appealed by the victims, this article aims to examine the historical background of the issue of comfort women and the main legal issues of these domestic decisions. The first issue concerns whether Japan is immune in ROK courts for even alleged violations of jus cogens, and the second issue is whether the individual claims of the comfort women are still valid today or whether they have been, as a matter of law, extinguished or waived through the 1965 Claims Agreement and the 2015 Agreement signed by both the ROK and Japan.