hankyoreh

On Aug. 14, 2019, the 1,400th Wednesday demonstration to resolve the issue of sexual slavery by the Japanese military was organized by the Korean Council for Justice and Remembrance for the Issues of Military Sexual Slavery by Japan on “Peace Road” in front of the Japanese Embassy in Seoul’s Jongno District, along with a global solidarity rally for the 7th International Memorial Day for Comfort Women. (Baek So-ah/The Hankyoreh)

An order from a South Korean judge demanding that the Japanese government present a list of its assets in South Korea appears unlikely to have any practical effect.

To begin with, Tokyo seems unlikely to comply after not responding to the trial in the first place or attempting to appeal its defeat in the first trial.

It also remains uncertain whether the Japanese government even has separate assets in South Korea. Assets related to embassies and other government offices are considered exempt from compulsory execution according to the Vienna Convention on Diplomatic Relations.

But the order is significant as a symbol of commitment to enforcing rulings against the Japanese government, which has denied responsibility for providing compensation to survivors of forced labor. The survivors themselves see Tokyo as unlikely to comply and have announced their intent to receive compensation through compulsory execution if necessary.

Another aspect that has been drawing attention in the decision — which was made by judge Nam Seong-woo of the 51st Civil Division of the Seoul Central District Court — is that it covered issues related to trials over historical matters involving Japan, even though the trial itself didn’t concern the Japanese government’s responsibility for providing compensation for illegal acts.

Nam shared the position that responsibility “is not waived in cases of serious illegal acts” in connection with the issues raised in a decision over litigation costs for a compensation suit, a ruling against the surviving “comfort women” (survivors of sexual slavery for the Japanese military) in a second suit, and a recent ruling against victims of forced labor who had sued Japanese companies.

Nam’s position flatly contradicts the idea of state immunity, which holds that a foreign court is not entitled to try Japan as a foreign state (government), and the argument of another Seoul Central District Court judge who maintained that the right to individual claims disappeared with the South Korea-Japan Claims Settlement in 1965.

In March, Kim Yang-ho, a judge with the 34th Civil Division of the Seoul Central District Court, cited state immunity in ruling that litigation costs could not be collected from Japan during the settlement of litigation expenses from a case won in January by the late Bae Chun-hee and other plaintiffs.

Typically, the losing side in a case is held responsible for litigation costs, but the court determined that “compulsory execution with regard to another country must be approached cautiously, due to concerns that it may harm that country’s sovereignty and dignity.”

The plaintiffs in that case submitted an appeal Monday against the ruling. In April, the Seoul Central District Court judge hearing a case filed by surviving comfort women also cited state immunity in dismissing the suit.

But Nam suggested that the acknowledgement of state immunity in cases of severe human rights infringements could itself be damaging to friendly relations between countries.

“When a state violates jus cogens, that state has strayed beyond the boundaries determined by the international community, and it is proper that the privileges granted to that state [i.e., state immunity] should be forfeited,” he said.

In his decision, Nam appeared to directly refute the grounds cited by the 34th Civil Division of his own court in its May 7 dismissal of a case filed against Japanese businesses by forced labor victims. The division in that case was the same one who had previously ruled that the Japanese government could not be held responsible for litigation costs.

Responding to the ruling’s argument that the right of forced labor victims to claim damages had been “resolved” with South Korea and Japan’s 1965 agreement settling claims, Nam noted that there was a “Supreme Court precedent determining that the right of forced labor victims to demand compensation from Japanese companies was not included in the scope of the claims agreement, and that this right could be exercised.”

In the case filed by military sexual slavery survivors, the “nature of the right to claim compensation cannot be viewed as different from the right of forced labor survivors to claim compensation,” he added.

Nam further remarked on the 34th Civil Division’s actions in citing the possibility of relations with Japan or the US souring as a reason for not granting the compensation request. Matters of deteriorating relations with Japan are for the executive to address, not for the judiciary to decide, he stressed.

Nam insisted that in cases of rulings and compulsory execution involving the assets of the Japanese government or Japanese businesses, the court’s role is simply to consider the legal principles, and that it was unjustified in citing diplomatic relations as a reason for a particular ruling.

By Shin Min-jung, staff reporter

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