State Immunity as applied to the Japanese Military as Purchaser and Joint Tortfeasor : Case of Korean ‘comfort women’

Abstract

The redress and reparation efforts for the “comfort women” of the Japanese military during the Pacific War have been hampered in their home countries by the state immunity doctrine. In this paper, we first evaluate the current state of jurisprudence on state immunity doctrine, especially as expressed in the seminal 2012 Ferrini ICJ decision. There the concept of “armed forces” has been emphatically commandeered to bolster the strict application of state immunity, and a full legal analysis under the state immunity doctrine, namely, that of the putative exception of “territorial torts,” was cut short by the court upon their finding of the element of “armed conflicts”, “armed forces”. However, the reason for making exceptions to state immunity is that state actions are sometimes not exercises of sovereignty but private commercial acts such as e.g., hiring, contracting, property owning or private civil acts such as negligently causing damages inside the forum state, etc. Japan’s mobilization and maintenance of ‘comfort women’ and ‘comfort stations’ does not constitute ‘armed conflicts’, the quintessential exercises of sovereignty. It was the result of colonialism whereby men and women of occupied territories within the empire were forced into most subservient and inhumane roles in the intra-empire economy supplying its imperial war efforts. The evolution of jurisprudence on exceptions to state immunity should not be shut down easily with respect to ‘comfort women’ issues on the ground of a nexus to “armed forces”, “armed conflicts.” For subject matter relevance, the less well-known 1992 Weltover decision of the US Supreme Court interpreting the American codification of the state immunity doctrine is instructive, where it characterized purchase of bullets and other military supplies as a commercial act exempt from state immunity. Such shut-down of the full analysis is especially worrying because it is during ‘armed conflicts’ that worst tragedies especially against women take place and they happen at the hands of ‘armed forces’. The Japanese military, as the end-customer of ‘comfort services’, solicited/procured and paid for ‘comfort services’ to reduce the cost of the war. These private legal acts incentivized the private contractors into recruiting Korean women already impoverished under colonialism by deceit and into treating the Korean women thus recruited harshly and inhumanely during the ‘comfort services’. Throughout the relevant periods, the Japanese military set the specifications of the services to be delivered, exercising its prerogative as the end-customer and primary contractor. It is for this role as a joint tortfeasor in the “territorial tort” of fraudulent human trafficking and also as a purchaser in the “commercial activity “ of purchasing ‘comfort services’ that the modern Japanese government should be held accountable in a Korean court of law despite state immunity.