Japanese government is immune from "comfort women" suit

Hwang Geum Joo, et al v. Japan, 367 U.S. App. D.C.

In December 2002, human rights organizations filed an amicus brief with the U.S. Court of Appeals for the District of Columbia Circuit in the case Hwang Geum Joo v. Japan. On February 21, 2006, the Supreme Court denied cert and closed the case.

 Background

The appellants—fifteen former “comfort women” (six South Koreans, Four Chinese, three Filipinos, and one Taiwanese)— were forcibly abducted from their homes and coerced into serving as sex slaves for the Japanese military before and during World War II.

The women allege that they endured rape, torture and other degrading treatment under a system of human trafficking and slavery. Between 1937 and 1945, the Japanese Imperial Forces abducted an estimated 200,000 young women—some as young as 12—from Asian countries to serve as sex slaves, or “comfort women,” for more than 2 million Japanese soldiers and officers.

U.S. District Court for the District of Columbia

On September 18th, 2000, the 15 women filed a class action lawsuit before the D.C. District Court, demanding reparations and an apology from the Japanese government for the violence they endured as comfort women.

The plaintiffs also sought “to declare that the Japanese government violated the Alien Tort Claims Act and prohibitions against enforced prostitution and rape and to direct the Japanese government to make available all documents or other records related to the operation of military rape camps.”

The defendant, the Japanese government, filed a motion to dismiss the suit, arguing that the court lacked jurisdiction over Japan’s actions and that the government of Japan was immune from suit under the Foreign Sovereign Immunities Act (FSIA).

The District Court granted Japan’s motion on the basis that Japan enjoyed sovereign immunity. The Court held that sexual slavery did not fall within the commercial activity exception to the FSIA, since Japan’s trafficking and enslavement of ‘comfort women’ occurred in the “context of the Japanese war effort.”

U.S. Court of Appeals for the D.C. Circuit

The plaintiffs appealed the decision to the D.C. Circuit Court of Appeals. Our amicus brief in support of the appeal argues that the District Court erred in its ruling that sexual services, “not typically engaged in by private players in the market,” fall outside the scope of the commercial activity exception to FSIA.

Japan’s system of sexual trafficking and slavery did constitute commercial activity, since it operated under market economics; sex slaves were “procured and priced according to market demand for particular ages and ethnicities” and consumers—the soldiers—paid for the comfort women’s sexual services.

Further, the Supreme Court has ruled that the “nature of the course of conduct rather than its purpose,” should be determinant of whether or not an act qualifies as commercial activity. Therefore, it is irrelevant that the comfort women system operated during a context of war and not with the primary purpose of amassing profit.

In June 27, 2003, the D.C. Circuit Court affirmed the lower Court’s decision, on the ground that Japan would have been afforded absolute immunity from suit in the United States at the time of the alleged acts.

Cert Petition and Circuit Court Decision on Remand

The Plaintiffs filed a cert petition with the U.S. Supreme Court on November 24, 2003. The following year, the Supreme Court granted the petition for a writ of certiorari, holding that the FSIA applied, “regardless of when the underlying conduct occurred.” The Court vacated the judgment and remanded the case to the D.C. Circuit Court for further consideration.

Upon re-examination, the D.C. Circuit again dismissed the case, this time under the political question doctrine. The Court ruled that to adjudicate the plaintiffs’ claims would require determining whether the post-war treaties signed by Japan foreclosed the private claims of war-time victims. The court held that this was a matter for the executive branch to decide: “much as we may feel for the plight of the appellants, the courts of the United States simply are not authorized to hear their case.”

Comments

Popular posts from this blog

U.S. State Department says "JK business" is human trafficking

NYTimes congratulates Park Yu-ha who denied "sex slaves"

Norimitsu Onishi, a liar