Attorney Sanghee Lee, the head of the Lawyers for the Democratic Society Task Force addressing the Japanese Military “Comfort Women” Issue

“Holding of judgment. The judgment of the first trial is canceled. The defendant (Japan) shall pay to the plaintiff each of the amounts listed under the heading ‘Amount Claimed (Appealed Amount)’ and interest thereon at the rate of 5 percent per annum from September 21, 2023, to November 23, 2023, and 12 percent per annum thereafter until paid in full.”

This is how the judgment in the second lawsuit for damages filed against Japan by 16 plaintiffs, including survivors of the “Comfort Women” and their bereaved families, begins, handed down by the 33rd Civil Affairs Division of the Seoul High Court, with presiding judge Koo Hoe-geun, on November 23, 2023. Eight years after the initial lawsuit filed on December 28, 2016, by a total of 21 individuals, including 11 survivors of the Japanese Military “Comfort Women” like Kim Bok-dong and Lee Yong-soo, as well as 10 successor family members of deceased victims, claiming damages of KRW 200 million(approximately USD 147,000) per person, and about two years and seven months after the dismissal of the first lawsuit on April 21, 2021, the Korean court endorsed the plaintiffs’ demands, officially assigning legal responsibility to Japan and ordering reparations for the victims, marking a “monumental” verdict. 

The news was reported as major news, accompanied by the jubilant appearance of Lee Yong-soo, the sole surviving plaintiff in the appellate trial. Civil society organizations, including the Korean Council for Women Drafted for Military Sexual Slavery by Japan and the Lawyers for a Democratic Society (hereinafter referred to as MINBYUN), who had been closely monitoring the case, applauded the Seoul High Court for “fulfilling its responsibility as the ‘last bastion of human rights’ by sincerely listening to the desperate pleas of the victims.” We spoke with Attorney Sanghee Lee (Jihyang Law), who played a central role in both the first and second rounds of litigation as the head of the MINBYUN Task Force Addressing the Japanese Military “Comfort Women” Issue, to delve into the domestic and international implications of the ruling, as well as the myriad challenges faced by the plaintiffs, who navigated through the ups and downs leading up to this historic verdict, “feeling like their lives were running out.”  

The illegality of colonization and the victims recognized as full citizens

“The historical significance of the Seoul High Court ruling lies primarily in its recognition of the victims’ legal rights and affirmation of their status as full citizens.”

Attorney Sanghee Lee’s arguments align clearly with the content stated at the outset of the judgment. The Seoul High Court referenced records including the  “Field Canteen Regulations” (September 29, 1937, Army Announcement), a product sales regulation of the Japanese Army, the “Regulations on Facilities outside the Camp Station” (July 18, 1943), and the “Wartime Service Regulations” (May 1938) and affirmed the illegality and accountability of Japan’s establishment and operation of comfort stations, which were “intended to boost soldiers’ morale and reduce complaints during the Sino-Japanese War and the Pacific War.” The ruling also examined the processes of mobilizing individual “Comfort Women” and their experiences, shedding light on the enduring physical and psychological trauma suffered by the victims. It explicitly stated that such actions violated international treaties and domestic criminal laws ratified by Japan at the time.  

Next, the most remarkable achievement of the second lawsuit, which overcame the limitations of the first case, is the ruling on “state immunity.” State immunity, also referred to as “sovereign immunity,” is a legal concept in customary international law that denotes “the legal immunity granted to a state under international law based on the principle of state equality.” According to this concept, the state institutions or acts of a sovereign state may be immune from the jurisdiction of the courts of other states. Put simply, a sovereign state cannot be compelled to be a defendant in the domestic trial of another country. This legal principle forms the foundation for maintaining international order and peace on an “equal footing,” focusing on individual sovereign states and moving away from power dynamics such as size or strength.

No “state immunity” for human rights violations and tortious acts

The issue lies in the fact that state immunity has historically served as a justification for impunity in cases of widespread human rights violations. This intersects with the trial court’s passive and appeasing judgment in the first case, which “acknowledged state immunity for tortious acts committed on the territory of the forum state in the course of conducting an armed conflict on an international basis and stated that the existence of a significant violation of human rights resulting from a breach of jus cogens cannot be used as the basis for determining whether jurisdiction exists.”  

However, in the second lawsuit, the Seoul High Court made a forward-thinking judgment. It stated, “It is reasonable to assume that there currently exists customary international law that does not recognize state immunity for tortious acts committed against nationals on the territory of the forum state, without inquiring whether the act is sovereign or not.” The Seoul High Court noted that customary international law regarding state immunity is dynamic rather than perpetual and static. It cited several reasons to support its decision, including the facts that many countries recognize exceptions to state immunity for tortious acts committed on their territory through domestic legislation; that recent rulings by the Supreme Courts of Italy, Brazil, and Ukraine have denied the application of state immunity to aggressor states; and that the international legal framework related to state immunity has already been moving towards protecting individuals’ right to access justice. In explaining these points, Attorney Lee’s remarks demonstrate the essence of this change.

“It’s one of the few cases in the world that has overcome state immunity, marking a declaration of the century that the international legal order and customary international law are transitioning from a perpetual and static approach to a human-centric one, prioritizing the protection of individuals’ right to seek justice. Even in times of war, there can be no such thing as collateral damage to each individual. States have an obligation to protect, guarantee, and uphold human rights. If citizens are harmed and the state fails to acknowledge this or denies them access to legal remedies, it becomes challenging to recognize them as subjects entitled to the rights guaranteed by the Constitution. Hence, it wouldn’t be an overstatement to liken this ruling to the ‘Magna Carta’ of customary international law, given that it broadens and deepens the perspective of human rights.”

Successive translations and hefty consulting fees... The process has been a bumpy ride

Certainly, the journey to this point has been far from smooth. All tasks fell on the plaintiffs’ shoulders, from objectively exposing the tortious acts and attributing responsibility to substantiating the extent of damages suffered. Delivering the complaint to the “defendant,” the Japanese government, for trial was not easy. It took persistent persuasion to convince the court of the government’s repeated evasions and refusals during the service by public notice. Press releases were issued at each trial, not only to ensure that news of the trial reached the Japanese government but also to prevent any procedural hurdles. The legal battle surrounding “state immunity” was particularly arduous and intricate.

“The task of uncovering and translating overseas materials and international precedents in languages beyond English was incessant. Countless emails seeking assistance were sent to international human rights law experts and scholars. Additionally, the ‘Declaration of Jurists of the World’ was submitted to the court, signed by 410 lawyers worldwide, including 198 domestic lawyers, to affirm the international trend towards expanding human rights protections and advocating exceptions to state immunity.”

Conclusions must be reached while the victim is still alive!

She also remembers an embarrassing moment. It was when she was asked to pay a significant consultation fee. Despite expecting a favorable outcome given the lawyer’s international legal expertise and experience, she had no option but to reluctantly withdraw due to the excessively high fee. Therefore, she is even more thankful for the support of legal experts worldwide who voiced their solidarity, including Professor Alexander Orakhelashvili from the University of Birmingham Law School in the UK, who provided supporting opinions via video during the appellate court proceedings. 

The most challenging period came as the trial approached its conclusion. There was a shortage of both energy and time to prepare the briefs and raise public awareness. The trial came to a standstill. Nevertheless, she couldn’t afford to postpone the pleading date.

“I grappled deeply with the decision of whether to postpone the trial, considering the challenge of meeting the deadline for submitting the briefs, despite everyone working tirelessly through the night. However, each time we faced such a dilemma, other concerns loomed larger. Among the plaintiffs is Lee Yong-soo, who is still alive. The thought of bearing the guilt if we postponed the trial and received sad news, or the possibility of a verdict being delivered in her absence, weighed heavily on all of us. Pouring my energy into it to the point where my entire body trembled, I felt as though my vitality was being depleted with each submission of the briefs.”

Attorney Lee expressed gratitude for being able to showcase the results during the lifetime of the human rights activists who have tirelessly advocated for a global message of “no more wars,” surpassing the role of mere victims.

The ruling in Brazil influenced our appellate judgment, which in turn impacted China

On another note, Attorney Lee is currently experiencing firsthand the ongoing scene where courts worldwide are mutually influencing and advancing the history of human rights.

“In August 2013, the Seoul Central District Court ruled in favor of 12 plaintiffs, including the late Bae Chun-hui, in a lawsuit against the Japanese government, demanding compensation of 100 million won each, stating that Japan’s state immunity could not be applied. It became a global issue at the time. Subsequently, this ruling influenced the Supreme Court of Brazil in the following year, 2022. A lawsuit filed by the families of victims who were aboard a ship sunk by German bombing during World War II was dismissed in the first and second trials. However, the Supreme Court overturned this decision based on our ruling. We felt proud of the outcome because our trial ultimately influenced their victory. Then again, the ruling of the Supreme Court of Brazil favored our appellate judgment.”

On April 21, news emerged that the descendants of 18 Chinese “Comfort Women” victims filed a lawsuit for damages against the Japanese government in the Shānxī High People’s Court, citing a recent ruling in Korea. This is yet another example of cases accumulating, pushing the boundaries of international human rights standards and advancing customary international law practices.

Urging the Japanese government to visibly comply and considering “compulsory execution”

Despite the historic ruling, however, the responses from the governments of both Korea and Japan have been lukewarm. The Korean government has only expressed, through the Ministry of Foreign Affairs Spokesperson’s Office, that it “respects the 2015 Korea-Japan ‘Comfort Women’ agreement as an official bilateral agreement,” while the Japanese government, too, is maintaining its previous “non-response policy” without appeal.

On February 29, civil society organizations, including MINBYUN, the Korean Council for Women Drafted for Military Sexual Slavery by Japan, the Korea-Japan Historical Justice and Peace Action, the Research Network on Japanese Military Sexual Slavery, and the Citizen’s Independence Meet, held an international symposium to discuss the “implications and challenges of the favorable verdict in the second trial of the lawsuit for damages against Japan.” Attorney Lee, who had taken a break since the verdict, announced plans for the future. She stated that she planned to urge the Japanese government to take concrete steps in response to the Japanese Military “Comfort Women” issue and considered the specifics of implementing “compulsory execution” procedures.  

“Through this lawsuit, we have established a robust institutional framework asserting that state violence or human rights violations cannot be immune from accountability under any circumstances, including the case of victims coerced or deceived into becoming Japanese Military ‘Comfort Women’ against their will during wartime. I believe this will ultimately lead to international pressure on Japanese society and contribute to the broadening of human rights awareness in our country.”