Japan's tort liability for Japanese Military Sexual Slavery victims as perpetrators of anti-human rights crimes : Focusing on the Seoul High Court Judgment of November 23, 2023, Case No. 2021Na2017165

The Seoul High Court's 2021Na2017165 decision, dated November 23, 2023, is a case in which victims of Japanese military comfort women during World War II filed a claim for compensation against Japan. The main issues are ① whether the principle of state immunity applies, ② international jurisdiction and governing law, and ③ the extent of liability for damages. The main contents of this study are summarized as follows. First, current international customary law, legislation of each country, and case law of some courts regard serious human rights violations due to crimes against humanity as violations of international jus cogens norms and deny state immunity in such cases. Since this case is a case of serious human rights violations of Japanese military comfort women victims, Japan's claim of state immunity cannot be accepted according to international customary law (custom). Second, according to the IDI's resolution on universal jurisdiction, universal civil jurisdiction can be applied in cases of serious human rights violations. Our court has not made a judgment on this matter, and based on its previous position, it determined that the Republic of Korea has jurisdiction based on substantial relevance and predictability. Third, the Japanese military comfort women issue is a tortious act with multiple locations of action and result according to the current international private law, the old foreign private law, and the then-applied statutes, and the law of the country where each act occurred becomes the governing law, and the victim can choose it. From this perspective, the subject judgment used the Civil Code of the Republic of Korea as the governing law according to the plaintiffs’ claim. Fourth, Japan’s serious human rights violations in this case include forced mobilization, sexual exploitation, confinement, assault, and injury, which violate several international treaties, including the Hague Convention on Land Warfare and the Forced Labor Convention, and the crime of enforced disappearance can also be recognized under the ICC Statute. Fifth, Japan has refused to make a sincere apology and complete compensation to date, so it cannot be said that its obligation to compensate under international law has been resolved. In addition, the agreements between Korea and Japan, the fund established throughout East Asia, and the 2015 comfort women agreement are not legal compensation or damages, so it cannot be said that individual claims have been extinguished. Sixth, Japan has a responsibility to compensate the victims in money in accordance with international law standards so that the victims can be restored to the state before they suffered serious human rights violations, and at the same time, it has the obligation to make an official apology, disclose the truth, and investigate the identity of missing and deceased people. However, the subject judgment only judged the compensation claimed by the plaintiffs.